Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"

Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813

Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.

Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.

The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.

The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"

The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.

The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.

Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
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An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB

An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
Public Employees Federation and New York, 30 PERB 3045

Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.

New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.

PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.

However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.

PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."

The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.

PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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Termination from a position funded by a federal grant

Termination from a position funded by a federal grant
Mucci v Binghamton, Appellate Division, 245 AD2d 678, Appeal dismissed, 91 NY2d 921, Motion for leave to appeal denied, 92 NY2d 802

In the Mucci case, the Appellate Division was asked to determine if the City of Binghamton abolished a position as a subterfuge to avoid having to file disciplinary charges against the permanent incumbent of the position.

City Community Development Attorney Lawrence A. Mucci's position was funded by federal Community Development Block Grant [CDBG] monies. The City's 1996 budget did not include Mucci's position among the positions to be funded from the Block Grant. As a result, Mucci's position was abolished and he was terminated.

Mucci sued, contending that Binghamton acted in bad faith in eliminating his position because "his termination was not for economic or efficiency reasons but was related to job performance entitling him to a hearing pursuant to Section 75 of the Civil Service Law." The City's action, Mucci complained, was a subterfuge for disciplinary action, thereby denying him his statutory due process right to notice and hearing as required by Section 75.

The Appellate Division concluded that Mucci did not prove that his position was eliminated in an effort to avoid having to file disciplinary charges against him in order to remove him from his position. The Court said that Mucci had the burden of proof of demonstrating that the City acted in bad faith, which, under the circumstances, meant that he had to show that:

1. There were no bona fide reasons for the elimination of the position; or

2. That there were no savings resulting from the abolishment of the position; or

3. Someone was appointed to perform Mucci's former duties.

While observing that the City could have used other funds to continue Mucci's position or could have modified CDBG's budget to continue the position, the fact that it did not do so was not persuasive. The Appellate Division ruled that Mucci failed to meet his burden of proof.

The Court noted that Binghamton was faced with a "financial crisis" due to declining revenues. Although Mucci's former duties were performed by the City's Corporation Counsel or by "outside private counsel on an as needed basis," critical to the Court's holding was the fact that no one was hired in Mucci's place nor was another position created to perform his former duties.

According to the ruling, indications of the City's "good faith" in abolishing Mucci's position included: (1) an evaluation "by an outside source" that Mucci's position was not required and (2) some 20 positions, including Mucci's, were abolished in the 1996 budget, allowing the City to reduce its tax burden and to make more efficient use of limited Federal monies.
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Reassignment of personnel

Reassignment of personnel
Superior Officers v Triborough Bridge & Tunnel Authority, Appellate Division, 244 AD2d 154

The Superior Officers Benevolent Association challenged the Triborough Bridge and Tunnel Authority's practice of assigning a sergeant to a lieutenant's post if the lieutenant was absent.

The Appellate Division dismissed the Superior Officer's petition, commenting that it would defer to the Authority's interpretation of its procedures for designating replacements for an absent lieutenant "since such interpretation is neither irrational nor unreasonable and effects a managerial determination within its purview." In other words, in the view of the Court the Authority was merely exercising its "management prerogatives" when it assigned a sergeant to a lieutenant's post if the lieutenant was absent.
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Dismissal for disqualifying misconduct bars unemployment insurance benefits

Dismissal for disqualifying misconduct bars unemployment insurance benefits
Lubin v Sweeney, Appellate Division, 244 AD2d 755, Motion for leave to appeal denied, 91 NY2d 810

The State's Unemployment Insurance Appeal Board will not grant unemployment insurance benefits to a person who has lost a job if the reason for the discharge was misconduct or for some other disqualifying reason. In Lubin the Appellate Division sustained the board's denial of unemployment benefits.

Lubin, a New York City Transit Authority platform conductor, was terminated because he struck a passenger with a flashlight. The passenger had inserted her arm between the subway's car doors in an effort to reopen them after they had shut, leaving her minor son unattended outside on the subway's platform. As a result, Lubin was terminated for violating the Authority's rule prohibiting employees from striking passengers under any circumstances.

The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling that Lubin "had lost his position under disqualifying conditions." It said that "a physical assault in the course of one's employment has been found to constitute disqualifying misconduct, as has the knowing violation of an employer's rules or policy" citing Graham v Sweeney, 233 AD2d 660.
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Family medical leave

Family medical leave
Dintino v Doubletree Hotels Corp., USDC EPa, 4 WH Cases2d 413

The Dintino case illustrates that under the Family Medical Leave Act [FMLA], the employer has the duty of determining whether or not an employee wishes to "charge" his or her absence from work to the 12-week FMLA period allowed employees each year.

Also, it is the responsibility of the employer to advise the individual, in writing, that it will count a particular absence against the individual's available FMLA leave.

According to U.S. District Court Judge John Fullam, the Doubletree Hotels Corporation failed in both duties in connection with Audrey Dintino's maternity. As a result, Judge Fullam found that the Company violated the FMLA because:

(1) it neglected to advise Dintino of her rights under the Americans With Disabilities Act and

(2) it terminated her when she did not return to work when her maternity leave ended.

Dintino had told Doubletree of her pregnancy and of her plans to take a three-month maternity leave commencing in July 1994. She actually left work on June 21, 1994 at the request of her physician when medical complications arose.

Doubletree claimed that her 12-week FMLA leave commenced on June 21, while Dintino contended that her "medical complications" triggered a "separate unpaid medical leave" under Doubletree's personnel policy and therefore her FMLA leave did not commenced until the expiration of that leave.

When Doubletree told Dintino that she had "abandoned her job" when she failed to work in October as scheduled, Dintino sued claiming the Company had violated her FMLA rights.

The Court agreed. It said that Doubletree had to give Dintino a written notice that the leave she was taking commencing in June was being charged as FMLA leave in order for it to be counted against her available annual FMLA leave. Doubletree's failure to do so was fatal to its claim that Dintino's June-October absence was part of her FMLA leave.

The Court pointed out that the employee is not required to identify the absence as being FMLA leave. According to the ruling, under federal Department of Labor regulations, "where there is ambiguity in the employee's request for leave the burden is on the employer to determine whether the leave is FMLA-qualifying" or not.

Finding that Dintino's FMLA leave commenced October 1994, the Court ruled that Doubletree's terminating her the following November "constituted an interference of [Dintino's] exercise of her FMLA rights." Why? Because, said the Court, Doubletree's failure to determine the type of leave Dintino intended to take from June 21, 1994 through October 7, 1994, coupled with its own leave policy, which the policy handbook distinguished from FMLA absences, supported its conclusion that the Company did not treat Dintino's June-October absence as FMLA leave.
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