Stay of arbitration
Town of Hempstead v CSEA Local 1000, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]
Under what circumstances will a court issue an order barring a grievance from being submitted to arbitration? As the Town of Hempstead case demonstrates, the court must be persuaded that (1) the demand for arbitration was untimely, or (2) that the subject matter of the grievance was not arbitrable, or (3) both.
In the Hempstead case, the court ordered the town to arbitrate a grievance in which an employee claimed he was denied seniority rights.
CSEA concluded that an employee who had less seniority than Fernando Avolio was promoted to the position of Dockmaster. The union filed a grievance on behalf of Avolio alleging that the Town violated the seniority provisions of the Taylor Law agreement then in effect.
The Town’s Grievance Board issued a determination holding that the Town’s action was not grievable because “the subject matter of the grievance does not fall within the definition of a grievance” under the terms of the collective bargaining agreement. The Town wrote CSEA indicating that it would not submit the issue to arbitration.
Half a year later, CSEA served the Town with a notice of intent to arbitrate. In response, Hempstead filed a motion in New York State Supreme Court pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] to stay arbitration.
The Town said the demand for arbitration was untimely because “the union ... was required to commence a proceeding to compel arbitration within 30 days of the Grievance Board decision....”. Also, it said Avolio’s claim was not subject to arbitration under the terms of the collective bargaining agreement.
The court rejected the town’s argument on the issue of timeliness. Because the town declared that the seniority issue was not covered by the contract, it took the position that the grievance did not exist, the court said. Therefore, the town cannot rely the CSEA’s failure to file a timely demand for arbitration to defeat its demand for arbitration.
As to the merits of the issue regarding the contract, said that the definition of a grievance is quite broad. Under the express language of the contract, the parties agreed that arbitrable grievances include those related to a claimed violation, misinterpretation or inequitable application of the existing collective bargaining agreement, rules, procedures, regulations, administrative orders or work rules of the employer or department.
Specifically, said the court, Section 26 of the Collective Bargaining Agreement provides that ability, adaptability and seniority shall prevail insofar as practicable and consistent with the needs and practices of the department. This includes (a) promotions in labor and non-competitive jobs, (b) job assignments, (c) transfers with a department regarding proximity of the job and (d) vacancies in departments.
The court said neither the Town’s petition to stay arbitration nor the Grievance Board’s memorandum set out any reason why the “seniority” grievance submitted by Avolio does not fall within the ambit of the definition of a grievance.
Finding that the Collective Bargaining Agreement “is clear and unequivocal and the definition of grievance is broad and encompassing and covers the dispute in question,” the court ordered Hempstead to “proceed forthwith to arbitration with respect to this grievance.”
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
August 05, 2010
Remanding an arbitration award for the sole purpose of calculating or recalculating "damages" does not permit a new determination on the merits
Remanding an arbitration award for the sole purpose of calculating or recalculating "damages" does not permit a new determination on the merits
Shroid Construction v Dattoma, App Div, 250 AD2d 590
Sometimes an arbitration award is challenged pursuant to Article 75 and while sustained on the merits, the matter is remanded to calculate or recalculate the amount of “damages” to be paid. May the arbitrator make new or additional findings in calculating the “damages” to be paid?
In the Shroid case, the Appellate Division ruled that the answer is no: “under the circumstances, it was improper for the [hearing officer] to attempt to amend his findings after they had been reviewed and affirmed on appeal.”
Shroid alleged the union had sanctioned a work slowdown by its members in violation of the terms of a collective bargaining agreement. The Judicial Hearing Officer [JHO] who heard the complaint ultimately sustained the allegations and ruled that the union’s action violated the contract, which resulted in Shroid’s suffering “actual damages.”
The JHO’s determination was sustained by the Appellate Division and the matter was returned to him for a determination of amount of the damages Shroid suffered. However, while considering the question of damages, the JHO made “substantive changes” in his findings and Shroid again appealed.
Shroid argued that the JHO did not have any power to make a substantive change in his findings, particularly in the light of the Appellate Division’s determination sustaining his findings.
The Appellate Division agreed. According to the ruling, the JHO’s authority was limited to making a “calculation of damages” resulting from the work slowdown.
The Appellate Division commented that its ruling in a prior appeal is not only binding on the parties, but was binding “on this court as well.”
In other words, once an arbitration award is sustained by the court, that determination is binding on the parties, and on the courts, in any future litigation involving a challenge to that determination.
Shroid Construction v Dattoma, App Div, 250 AD2d 590
Sometimes an arbitration award is challenged pursuant to Article 75 and while sustained on the merits, the matter is remanded to calculate or recalculate the amount of “damages” to be paid. May the arbitrator make new or additional findings in calculating the “damages” to be paid?
In the Shroid case, the Appellate Division ruled that the answer is no: “under the circumstances, it was improper for the [hearing officer] to attempt to amend his findings after they had been reviewed and affirmed on appeal.”
Shroid alleged the union had sanctioned a work slowdown by its members in violation of the terms of a collective bargaining agreement. The Judicial Hearing Officer [JHO] who heard the complaint ultimately sustained the allegations and ruled that the union’s action violated the contract, which resulted in Shroid’s suffering “actual damages.”
The JHO’s determination was sustained by the Appellate Division and the matter was returned to him for a determination of amount of the damages Shroid suffered. However, while considering the question of damages, the JHO made “substantive changes” in his findings and Shroid again appealed.
Shroid argued that the JHO did not have any power to make a substantive change in his findings, particularly in the light of the Appellate Division’s determination sustaining his findings.
The Appellate Division agreed. According to the ruling, the JHO’s authority was limited to making a “calculation of damages” resulting from the work slowdown.
The Appellate Division commented that its ruling in a prior appeal is not only binding on the parties, but was binding “on this court as well.”
In other words, once an arbitration award is sustained by the court, that determination is binding on the parties, and on the courts, in any future litigation involving a challenge to that determination.
Probationary termination procedure found consistent with due process
Probationary termination procedure found consistent with due process
Persico v NYC Board of Education, Appellate Division, 250 A.D.2d 854
Isabella G. Persico, a New York City probationary teacher, was terminated from her position effective September 3, 1990. In accordance with the by-laws of the New York City Board of Education, the decision to terminate Persico followed a review by a committee appointed by the Chancellor of the Board of Education. The committee held a hearing and recommended that Persico be terminated.
After being notified of the decision, Persico sued and a State Supreme Court judge ordered the Board of Education to conduct a de novo review hearing.
The Appellate Division said that Supreme Court was incorrect because Persico had not demonstrated that she was deprived of any substantial right warranting a new review hearing.
According to the ruling, Persico had been given “numerous opportunities to questions witnesses,” was not prevented from giving relevant testimony and told she could call witnesses on her behalf. In addition, her advisor was allowed to submit a written concluding statement.
This, said the court, indicated that she had been provided with “ample opportunity” to challenge the termination of her probationary appointment.
Persico v NYC Board of Education, Appellate Division, 250 A.D.2d 854
Isabella G. Persico, a New York City probationary teacher, was terminated from her position effective September 3, 1990. In accordance with the by-laws of the New York City Board of Education, the decision to terminate Persico followed a review by a committee appointed by the Chancellor of the Board of Education. The committee held a hearing and recommended that Persico be terminated.
After being notified of the decision, Persico sued and a State Supreme Court judge ordered the Board of Education to conduct a de novo review hearing.
The Appellate Division said that Supreme Court was incorrect because Persico had not demonstrated that she was deprived of any substantial right warranting a new review hearing.
According to the ruling, Persico had been given “numerous opportunities to questions witnesses,” was not prevented from giving relevant testimony and told she could call witnesses on her behalf. In addition, her advisor was allowed to submit a written concluding statement.
This, said the court, indicated that she had been provided with “ample opportunity” to challenge the termination of her probationary appointment.
August 04, 2010
Providing legal representation and indemnification of State officers and employees
Providing legal representation and indemnification of State officers and employees
Samuels v Vacco, Appellate Division, 251 AD2s 10
Section 17 of the Public Officers Law provides that a state officer or employee is entitled to representation by the Attorney General if the individual is sued as a result of his or her performing official duties. Under certain conditions, the individual may be entitled to be represented by a private attorney rather than by the Attorney General.*
Section 17 provides for representation and indemnification only in a civil action or proceeding in state or federal court arising out of any alleged act or omission which occurred while the individual was acting within the scope of his or her public employment.
David G. Samuels was named as a defendant in a civil rights action brought pursuant to 42 USC 1983. He decided that he preferred to be represented by his own, private, counsel rather than by the Attorney General but wanted the Attorney General to pay his legal fees. When the Attorney General declined to reimburse him for his legal fees if Samuels employed private counsel, Samuels sued.
The Appellate Division rejected Samuels’ petition. The court said Samuels did not allege that he was acting outside the scope of his employment and thus “there was never any possibility that [he] would be held liable for unreimbursable damages, either compensatory or punitive.”
Would it be possible for the individual to claim he or she was acting “outside the scope of his or her employment,” in an effort to obtain private counsel?
Surely, but such a representation would constitute an admission such that the provisions set out in Section 17 are not triggered and the Attorney General would be under no obligation to pay the individual’s attorney’s fees nor would the State be liable to reimburse the individual for any damages won by the plaintiff.
Are there any circumstances under which an officer or employee may claim that he or she is entitled to representation by private counsel in lawsuits connected with the performance of official duties?
Yes: when the Attorney General, or a court, determines that such representation would be appropriate or because there is an actual or potential conflict of interest. Under such circumstances the individual is entitled to be represented by private counsel and the State is required to pay the individual’s “reasonable attorneys’ fees and litigation expenses” and any damages for which the individual may be held liable.
* Section 18 of the Public Officers Law authorizes political subdivisions of the State to provide for the “defense and indemnification” of officers and employees sued in connection with the performance of their official duties.
Samuels v Vacco, Appellate Division, 251 AD2s 10
Section 17 of the Public Officers Law provides that a state officer or employee is entitled to representation by the Attorney General if the individual is sued as a result of his or her performing official duties. Under certain conditions, the individual may be entitled to be represented by a private attorney rather than by the Attorney General.*
Section 17 provides for representation and indemnification only in a civil action or proceeding in state or federal court arising out of any alleged act or omission which occurred while the individual was acting within the scope of his or her public employment.
David G. Samuels was named as a defendant in a civil rights action brought pursuant to 42 USC 1983. He decided that he preferred to be represented by his own, private, counsel rather than by the Attorney General but wanted the Attorney General to pay his legal fees. When the Attorney General declined to reimburse him for his legal fees if Samuels employed private counsel, Samuels sued.
The Appellate Division rejected Samuels’ petition. The court said Samuels did not allege that he was acting outside the scope of his employment and thus “there was never any possibility that [he] would be held liable for unreimbursable damages, either compensatory or punitive.”
Would it be possible for the individual to claim he or she was acting “outside the scope of his or her employment,” in an effort to obtain private counsel?
Surely, but such a representation would constitute an admission such that the provisions set out in Section 17 are not triggered and the Attorney General would be under no obligation to pay the individual’s attorney’s fees nor would the State be liable to reimburse the individual for any damages won by the plaintiff.
Are there any circumstances under which an officer or employee may claim that he or she is entitled to representation by private counsel in lawsuits connected with the performance of official duties?
Yes: when the Attorney General, or a court, determines that such representation would be appropriate or because there is an actual or potential conflict of interest. Under such circumstances the individual is entitled to be represented by private counsel and the State is required to pay the individual’s “reasonable attorneys’ fees and litigation expenses” and any damages for which the individual may be held liable.
* Section 18 of the Public Officers Law authorizes political subdivisions of the State to provide for the “defense and indemnification” of officers and employees sued in connection with the performance of their official duties.
A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed
A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed
M.H. v Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,097
M.H., a tenured New York City teacher, appealed the denial of her objections to unsatisfactory performance ratings by the Interim-Acting Deputy Chancellor to the Commissioner of Education.
Rejecting M.H.’s appeal as untimely notwithstanding the representation that the delay in filing the appeal was due to personal illness, the Commissioner explained:
1. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown and to be timely, a request to have the delay excused must be commenced within 30 days of receiving the administrative determination.
2. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays.
3. Neither illness nor ignorance of the appeal process is a valid excuse for the late commencement of an appeal.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16097.htm
M.H. v Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,097
M.H., a tenured New York City teacher, appealed the denial of her objections to unsatisfactory performance ratings by the Interim-Acting Deputy Chancellor to the Commissioner of Education.
Rejecting M.H.’s appeal as untimely notwithstanding the representation that the delay in filing the appeal was due to personal illness, the Commissioner explained:
1. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown and to be timely, a request to have the delay excused must be commenced within 30 days of receiving the administrative determination.
2. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays.
3. Neither illness nor ignorance of the appeal process is a valid excuse for the late commencement of an appeal.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16097.htm
Canceling COBRA coverage
Canceling COBRA coverage
Geissal v Moore Medical Corp., USSC, 524 U.S. 74
If an employer discovers that an individual participating in its health insurance plan under COBRA is also covered as a dependent under a different health insurance plan, may it cancel his or her coverage?
It all depends on the date on which the individual’s coverage as a dependent in the other plan took effect.
According the United States Supreme Court’s ruling in the Geissal case, the employer may not cancel its coverage if the individual was covered as a dependent under the other plan before he or she made the COBRA election.
The court noted that 29 USC 1162(2)(D)(i) allows the employer to cancel an individual’s COBRA participation in its health plan only if the individual became covered as a dependent in the other plan after making his or her COBRA election and then only if the new plan does not exclude “pre-existing conditions.”
The Geissal case involved an employee who was covered under both his employer’s health insurance plan and as a dependent under his spouse’s health insurance plan at the time he was terminated from employment and made a timely election to continue in the employer’s group health plan as provided by COBRA.
The fact that both plans provided similar coverages was held irrelevant. The high court decided that because Geissal was covered by his wife’s policy as a dependent before he elected COBRA, his former employer could not cut off his participation in its plan even though the benefits in both plans were essentially the same.
In other cases involving the discontinuation of COBRA coverage by employers on the basis of “alternate coverage as a dependent,” some U.S. Circuit Courts of Appeal had applied a “significant gap” test. These courts held that continued coverage under COBRA was available to an eligible employee only if there was a “significant gap” between the individual’s COBRA benefits and the benefits available to the individual under his or her spouse’s plan. Eligibility for continuation of COBRA coverage based on such a distinction was rejected by the Supreme Court.
Geissal v Moore Medical Corp., USSC, 524 U.S. 74
If an employer discovers that an individual participating in its health insurance plan under COBRA is also covered as a dependent under a different health insurance plan, may it cancel his or her coverage?
It all depends on the date on which the individual’s coverage as a dependent in the other plan took effect.
According the United States Supreme Court’s ruling in the Geissal case, the employer may not cancel its coverage if the individual was covered as a dependent under the other plan before he or she made the COBRA election.
The court noted that 29 USC 1162(2)(D)(i) allows the employer to cancel an individual’s COBRA participation in its health plan only if the individual became covered as a dependent in the other plan after making his or her COBRA election and then only if the new plan does not exclude “pre-existing conditions.”
The Geissal case involved an employee who was covered under both his employer’s health insurance plan and as a dependent under his spouse’s health insurance plan at the time he was terminated from employment and made a timely election to continue in the employer’s group health plan as provided by COBRA.
The fact that both plans provided similar coverages was held irrelevant. The high court decided that because Geissal was covered by his wife’s policy as a dependent before he elected COBRA, his former employer could not cut off his participation in its plan even though the benefits in both plans were essentially the same.
In other cases involving the discontinuation of COBRA coverage by employers on the basis of “alternate coverage as a dependent,” some U.S. Circuit Courts of Appeal had applied a “significant gap” test. These courts held that continued coverage under COBRA was available to an eligible employee only if there was a “significant gap” between the individual’s COBRA benefits and the benefits available to the individual under his or her spouse’s plan. Eligibility for continuation of COBRA coverage based on such a distinction was rejected by the Supreme Court.
Unemployment Insurance Board may apply the doctrine of collateral estoppel to reject an individual’s application for benefits
Unemployment Insurance Board may apply the doctrine of collateral estoppel to reject an individual’s application for benefits
Obafemi v Comm. of Labor, Appellate Division, 250 A.D.2d 905
Suppose an employee who has been dismissed from his or her position following a disciplinary hearing applies for unemployment insurance benefits. May the Unemployment Insurance Board deny unemployment insurance benefits on the doctrine of “collateral estoppel?”
The doctrine of collateral estoppel allows a court or administrative body to apply the judgment in a earlier action in a subsequent action based on the same events but brought as a different “cause of action,” thereby obviating the need for a new hearing.
Disciplinary charges were filed against Thkikuma D. Obafemi, a toll collector, alleging that he was discourteous to customers. The arbitrator had found Obafemi guilty of being rude to a customer despite prior warnings to refrain from such inappropriate behavior. The penalty imposed was dismissal.
Following his termination Obafemi applied for unemployment insurance benefits. When the Unemployment Insurance Appeals Board ruled that he was disqualified for such benefits because he was terminated for misconduct, he appealed. Obafemi claimed that he was not given a hearing as to his eligibility for unemployment insurance benefits. The Appellate Division dismissed his appeal, commenting that the board could give “collateral estoppel” effect to the findings of the arbitrator. After all, the court said, Obafemi had been given a “full and fair opportunity” to litigate the issue of his misconduct at the arbitration hearing.
In another unemployment insurance case, Joyce v Commissioner of Labor, 250 A.D.2d 901, the Appellate Division said that the Unemployment Insurance Board had substantial evidence that Stephen M. Joyce had voluntarily left his employment with the U.S. Postal Service without good cause.
Joyce was directed to leave work after an outburst during which he shouted racist remarks. The Postal Service’s psychiatrist found Joyce “not fit for duty” and advised him to seek “outside psychiatric treatment.” Joyce was also told that he could not return to work until he obtained treatment. Joyce told the Service that he was unwilling to seek outside psychiatric treatment.
The Court agreed with the Board, pointing out that “it is well settled that when a claimant fails to take a step that is reasonably required as a prerequisite to continued employment, the claimant will be deemed to have left his [or her] employment without good cause.”
Obafemi v Comm. of Labor, Appellate Division, 250 A.D.2d 905
Suppose an employee who has been dismissed from his or her position following a disciplinary hearing applies for unemployment insurance benefits. May the Unemployment Insurance Board deny unemployment insurance benefits on the doctrine of “collateral estoppel?”
The doctrine of collateral estoppel allows a court or administrative body to apply the judgment in a earlier action in a subsequent action based on the same events but brought as a different “cause of action,” thereby obviating the need for a new hearing.
Disciplinary charges were filed against Thkikuma D. Obafemi, a toll collector, alleging that he was discourteous to customers. The arbitrator had found Obafemi guilty of being rude to a customer despite prior warnings to refrain from such inappropriate behavior. The penalty imposed was dismissal.
Following his termination Obafemi applied for unemployment insurance benefits. When the Unemployment Insurance Appeals Board ruled that he was disqualified for such benefits because he was terminated for misconduct, he appealed. Obafemi claimed that he was not given a hearing as to his eligibility for unemployment insurance benefits. The Appellate Division dismissed his appeal, commenting that the board could give “collateral estoppel” effect to the findings of the arbitrator. After all, the court said, Obafemi had been given a “full and fair opportunity” to litigate the issue of his misconduct at the arbitration hearing.
In another unemployment insurance case, Joyce v Commissioner of Labor, 250 A.D.2d 901, the Appellate Division said that the Unemployment Insurance Board had substantial evidence that Stephen M. Joyce had voluntarily left his employment with the U.S. Postal Service without good cause.
Joyce was directed to leave work after an outburst during which he shouted racist remarks. The Postal Service’s psychiatrist found Joyce “not fit for duty” and advised him to seek “outside psychiatric treatment.” Joyce was also told that he could not return to work until he obtained treatment. Joyce told the Service that he was unwilling to seek outside psychiatric treatment.
The Court agreed with the Board, pointing out that “it is well settled that when a claimant fails to take a step that is reasonably required as a prerequisite to continued employment, the claimant will be deemed to have left his [or her] employment without good cause.”
Subscribe to:
Posts (Atom)
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press.
Email: nyppl@nycap.rr.com.