The statute of limitations for litigating an alleged breach of a collective bargaining agreement is six years

The statute of limitations for litigating an alleged breach of a collective bargaining agreement is six years
Lagreca v City of Niagara Falls, 244 AD2d 862, leave to appeal denied, 91 NY2d 813.

The Lagreca decision points out that a law suit for an alleged breach of a collective bargaining agreement must be brought within six years of the act or omission claimed to constitute the breach.

When does the statute of limitations for the alleged breach of contract begin to run? On the date when the alleged breach occurred.

Bernadette J. Lagreca, the widow of a deceased city of Niagara Falls employee, sued the city because it had terminated her late husband’s life insurance policy in June 1988.

Lagreca contended that the cancellation of the policy violated the collective bargaining agreement then in effect. Lagreca, however, did not file her lawsuit until seven years after the insurance had been terminated. The court said that statute of limitation for breach of contract was six-years and had expired by the time the suit was filed.

The appellate division affirmed the Supreme Court’s dismissal of Lagreca’s petition, commenting that “the cause of action for breach of contract occurred at the time of the breach when the [city] terminated life insurance coverage of [Lagreca deceased husband] ... allegedly in violation of the collective bargaining agreement.”

Union security

Union security
Local 1095, AFSCME and Erie Community College, 30 PERB 4707

How much does it take to show that negotiating unit employees did not have “work exclusivity” with respect to a particular work site? If there is a history of work assignments being frequently switched between unit members and non-unit workers, the work is non-exclusive according to a PERB Administrative Law Judge.

Administrative Law Judge Jean Doerr ruled that Local 1095 failed to demonstrate that the union had “exclusivity” with respect to “second shift” security work being performed at an off-campus site of the college because employees of a private security company, Pro Service, had alternated with union members in providing security services at that location for a number of years.

In such cases, said Doerr, the “essential questions to be resolved are (1) has the work been performed exclusively by unit employees? and (2) are the reassigned tasks substantially similar to those previously performed by unit members? One of the points made in the decision was that “the work at issue shifted back and forth between [Local 1095] and Pro Guard from September 1995 through January 1997,” when Pro Guard again took over the entire operation.

Doerr said that given the “ever changing nature of the assignment,” it is difficult to see that [Local 1095] had any expectation that, after again resuming the work in April of 1996, the last “switch,” it would have the second shift assignment for any extended period of time.

Failure to exhaust available administrative remedies fatal to seeking court review

Failure to exhaust available administrative remedies fatal to seeking court review
White v Pozzi, 72 AD3d 1106*

Employee’s failure to exhaust his administrative remedies coupled with his failure to demonstrate an exception to the exhaustion requirement applied in his case requires the denial of his petition seeking judicial review of the disciplinary determination.

* Text of decision e-mailed to registered readers.

Disciplinary suspension without pay

Disciplinary suspension without pay
Empire Hook & Ladder Co. #1 v Nyack FD, [Not selected for publication in the Official Reports]

It is not at all unusual for an employee to challenge his or her disciplinary suspension by filing an Article 78 petition with a court.

In contrast, an Article 78 petition challenging the disciplinary suspension of a volunteer organization is not at all common. Yet a disciplinary suspension was the basis for a lawsuit filed by the Empire Hook and Ladder Company #1, a volunteer fire department, against the Nyack Fire Department.

The genesis of the action was the Village of Upper Nyack’s approval of a request submitted by a member of Empire to purchase a vehicle to be used to transport Empire members to fires as well as certain non-fire details.

The Nyack Fire Department, however, said that the member who submitted the request to the village had violated Nyack’s rules because the member had appeared before the village board without first obtaining permission to do so from Nyack’s chief. The chief declared that unless Empire apologized within 10 days “the matter would be reopened and appropriate action would be taken.”

No apology was received and Nyack told Empire it was suspended from service for 30 days for violating the department’s rules. The suspension, however, “did not include fires, emergencies or funeral detail.”

Empire sued, contending that its suspension was arbitrary and capricious. It argued that (1) it was never presented with written charges specifying the Nyack rule or regulation which it allegedly violated and (2) the penalty imposed -- suspension for 30 days -- violated General Municipal Law Section 209-i because it had not been given a hearing on the charges.*

According to the ruling, Empire was a member of the Nyack Fire Department. One of Nyack’s rules prohibited “an individual or company ... from communicating or asking to go before any village body for any type of equipment or any other reason without obtaining permission from the Chief of the Nyack Fire Department.”

Based on this prohibition, Acting Justice Weiner dismissed Empire’s petition, ruling that:

1. GML Section 209-i did not apply in this situation and therefore no “pre-suspension” hearing was required; and

2. The discipline imposed on Empire was not so disproportionate to the offense committed as to shock one’s sense of fairness.

* GML 209-i authorizes fire departments to make regulations governing removal of volunteer officers and volunteer members of such departments and member companies for incompetence or misconduct. The Section also requires “notice and hearing” before a member may be removed from his or her position. In Armstrong v. Centerville Fire Company, 83 NY2d 937, however, the Court of Appeals decided that in adopting Section 209-i the legislature did not intend to interfere with discipline in connection with the conduct of the internal affairs of a fire department.