Seniority in a tenure area and the “40% rule”

Seniority in a tenure area and the “40% rule”
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177

Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.

After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.

The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,

if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”

Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:

Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

and as used in Part 30 of the Commissioner’s regulations, substantial portion means:

40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).

The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.

Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
.

An employee organization's duty of fair representation

An employee organization's duty of fair representation
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294

Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.

After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.

Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.

US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.

Confidentiality of e-mail

Confidentiality of e-mail
Footnotes on E-mails

In recent years numerous requests and warnings have been included at the foot of e-mails such as “Please let us know if you are not the intended receiver of this e-mail” or “CONFIDENTIAL – this is privileged correspondence – please destroy if you are not the individual for whom it is intended,” etc.

The latest in what is fast becoming an avalanche of warnings is the following caution appearing at the bottom of an e-mail received from a North Carolina governmental agency:

All email correspondence to and from this address is subject to the North Carolina Public Records Law, which may result in monitoring and disclosure to third parties, including law enforcement.

The Circuit Court of Appeals, Second Circuit, has considered one aspect of disclosing electronic records such as e-mail.

In Pritchard, et al v County of Erie and others, 546 F.3d 222, the Second Circuit considered the question of the ability of a litigant to demand discover of a public employer’s electronic records in the course of federal litigation. In this instance, the Circuit Court held that e-mails between a government attorney and Erie County officials were protected by attorney-client privilege.

Vacating an arbitrator’s award

Vacating an arbitrator’s award
State Nurses Association v Mount Sinai Hospital, 275 AD2d 538

The Appellate Division, Third Department’s ruling in the State Nurses Association case provides a reminder of the guidelines used by the courts when considering a motion to vacate an arbitration award.

The Association attempted to confirm a disciplinary arbitration award involving one of its members.

The arbitrator ruled that although Mount Sinai had just cause to suspend Barbara Tomasino, a registered nurse, dismissal was too harsh a penalty. The arbitrator reasoned that given Tomasino’s long and distinguished employment at Mount Sinai, the lengthy suspension -- 2 1/2 years -- constituted sufficient and appropriate discipline.

The arbitrator directed the hospital to reinstate Tomasino without back pay or benefits and the 2 1/2 years she was out of service was to be deemed a suspension without pay. The hospital, however, refused to allow Tomasino to return to work and the Association brought an Article 75 action seeking to confirm the arbitrator’s award.

Mount Sinai objected and asked the court to vacate the arbitration award on the grounds that it was against public policy, irrational and in excess of the arbitrator’s authority under the CBA. After a State Supreme Court judge confirmed the arbitration award and directed Tomasino’s immediate reinstatement, with back pay and benefits from the date her suspension ended to the date of reinstatement, Mount Sinai appealed.

The Appellate Division affirmed the lower court’s ruling, noting that the limited role courts have in disposing of disputes submitted to binding arbitration pursuant to a collective bargaining agreement. Citing NYS Correctional Officers v State of New York, 94 NY2d 321, the court said:

“Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies.”

Although a court may vacate an award when it determines that it is in violation of a strong public policy, is irrational or exceeds a specific limitation on the arbitrator’s power, the Appellate Division said that it did not find that any of these elements applicable in this case.

On the specific issue of the claim that the penalty imposed violates public policy, the Appellate Division ruled:

“Under the particular circumstances of this case, we find that the arbitrator’s imposition of a 2 and 1/2-year suspension was not in contravention of public policy since [Mount Sinai] has not identified any statute or regulation which requires termination of employment rather than a lengthy suspension in connection with such conduct.”

Also rejected was Mount Sinai’s argument that the arbitrator’s award was irrational, particularly in view of the parties’ explicit direction that the arbitrator determine the remedy due Tomasino if it found a lack of just cause for her dismissal. The court’s conclusion with respect to the penalty imposed by the arbitrator: the remedy of reinstatement without back pay and benefits was well within the arbitrator ‘s authority.

On a related point, in Greenberg v Bear, Stearns & Co. Inc., 220 F.3d 22, the court said that “where a petitioner complains ... in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition.”

Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title

Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title
Matter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third Department

Kenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed.

The employees hold civil service positions classified in other than “Treatment Team Leader.”

The out-of-title grievances alleged that the employees had been improperly assigned to perform and had been performing the duties of a Treatment Team Leader [TTL], Salary Grade M-1, a title designated “managerial” for the purposes of collective bargaining in violation of the relevant collective bargaining agreement.

After unsuccessful administrative appeals, Brynien initiated two CPLR Article 78 proceedings challenging the administrative determinations.

Supreme Court dismissed both petitions and the Appellate Division affirmed the lower courts “well-reasoned written decision”

The Appellate Division said "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)" and, in this instance, by Article 17 of the governing collective bargaining agreement.

As to the merits of the Article 78 petitions, the court said that its review of out-of-title work grievances focuses on “whether the new duties are appropriate to [the affected employees' job] titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [their respective] job specifications." Further, said the court, "Judicial review of [the Governor’s Office of Employee Relations’*] determination in this context is limited to whether it is arbitrary, capricious or without any rational basis."

The Appellate Division explained that although an employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work, here the dispositive inquiry is whether the Governor’s Office of Employee Relations rationally concluded that the affected employees did not meet the minimum baseline requirements of TTLs such that the grieved duties are appropriate to their job titles and are similar in nature to, or a reasonable outgrowth of, the duties listed in their job specifications.

Holding that in its view GOER did so, the Appellate Division dismissed Brynien’s appeal.

* The Governor’s Office of Employee Relations was the ultimate administrative appellate body in this instance.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09329.htm

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test
NYC Department of Sanitation v C.L.*, OATH Index #760/11

The New York City Department of Sanitation requires employees who are holders of commercial drivers' licenses to submit to random drug testing.

A sanitation worker, C.L. was charged with refusing to submit to a random test as a result of his failing to provide a sufficient urine sample within the time frame allotted by federal regulations.

C.L. then had five days from the date of the test to submit documentation to the Medical Review Officer (MRO) to show why he was unable to provide the required sample within the time period set by the federal regulation.

OATH Administrative Law Judge Ingrid Addison found that the Department had proved the refusal charge. Although Judge Addison indicated that she “was not entirely convinced by the MRO's rationale for rejecting the medical reports submitted by C.L., C.L. failed to present any expert testimony to controvert it.

Thus, the ALJ concluded, C.L.’s failure to produce sufficient urine within the time allotted constituted a refusal as charged.

In addition, Judge Addison found that the immediate follow-up steps taken by C.L. whereupon he sought an independent urine test, rebutted the inference that his urine sample would have tested positive. Accordingly she recommended that C.L. be suspended for 25 days without pay.

* C.L. held a commercial driver’s license and was subject to both Sanitation Department and federal regulations that require random drug testing. Pursuant to such federal regulations, C.L.’s name was been withheld from publication in Judge Addison's determination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-760.pdf

Criticism of employee performance serving pursuant to a contract with a private entity

Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]

If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.

Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.

The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.

The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.

City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.

Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:

1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and

2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.

Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.

Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”

Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.

The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.

Determining membership in a negotiating unit for the purposes of collective bargaining

Determining membership in a negotiating unit for the purposes of collective bargaining
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413

Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.

Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?

This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.

Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.

According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.

Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.

Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.

The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.

The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.

In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.

This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.

In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.

* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.