Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration

Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration
Burning v Niagara Frontier Transit Metro System and Local 1342, 273 AD2d 830, Motion for leave to appeal denied, 95 NY2d 765

Few collective bargaining agreements allow a unit member to file a demand to arbitrate a grievance. In the absence of such authority, the general rule is that only the employee organization can demand that a grievance be submitted to arbitration.

Suppose the employee organization decides not to appeal a disciplinary or other grievance to arbitration. What, if any, action -- usually referred to as direct action -- can the unit member take in an attempt to challenge or go around the union’s decision?

The Burning case considers the major exception to the general rule barring direct action by a unit member -- the unit member may initiate direct action against the employer if he or she can establish that he or she was denied fair representation by employee organization.

Kenneth L. Burning was terminated from his position with the Niagara Frontier Transportation Authority.

Burning sued in an effort to overturn his dismissal, contending that his union, Local 1342, Amalgamated Transit Union, breached its duty of fair representation when it decided not to demand arbitration challenging his termination by the Authority.

The Appellate Division, however, noted that the mere failure of a union to proceed to arbitration does not establish a breach of the duty of fair representation.

If an employee organization declines to arbitrate a grievance over the objections of its member the individual may take direct action only if he or she can demonstrate that the Union’s conduct was arbitrary, discriminatory or in bad faith.

As Burning did not show that the union’s decision was arbitrary, discriminatory or made in bad faith, the Fourth Department ruled that Supreme Court properly dismissed Burning’s petition challenging his dismissal.

Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty

Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty
Rapkiewicz v Middle Country School District; 273 AD2d 392, Motion for leave to appeal denied, 95 NY2d 765
Tiano v Middle Country School District, App. Div., Second Dept., 273 AD2d 396, Motion for leave to appeal denied, 95 NY2d 766

The Pell doctrine, typically used to test the reasonableness of a disciplinary penalty, basically states that a disciplinary penalty imposed by a public employer will be sustained unless it is found to be disproportionate to the offense [Pell v Board of Education, 34 NY2d, 222].

In the Rapkiewicz and Tiano appeals, the application of the Pell doctrine resulted in the Appellate Division remanding both cases to the Middle Country School District for the imposition of a less severe penalty. The penalty that had been earlier imposed by the district: dismissal.

In 1998 Adam Rapkiewicz and Frank Tiano, then employed as custodians by the district, were found guilty of disciplinary charges that the court described as misconduct, while serious, was an isolated event.... The Appellate Division concluded that mitigating circumstances required it to vacate their respective terminations.

The mitigating factors: Rapkiewicz had received outstanding ratings during his seven years of service with the district, while Tiano had over 10 years of satisfactory service with the district -- and both were found guilty of an isolated event of misconduct.

Although the court held that the findings that both were guilty of misconduct was supported by substantial evidence in the record, it ruled that under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one’s sense of fairness.

However, the Appellate Division only annulled the penalty imposed by the district and directed it to impose a less harsh penalty -- its order provided no other relief such as the awarding of back pay and benefits.

Typically, back pay and benefits are awarded when the court finds that the underlying disciplinary action was in some way defective such as the hearing officer lacking jurisdiction or a failure of administrative due process.

Here, however, the decision indicates that the disciplinary procedure was conducted properly; the only objection voiced by the court was the severity of the penalty imposed.

The fact that Appellate Division decided against directing the district to reinstate Rapkiewicz and Tiano to their former positions suggests that the court would not require the district to provide for an award of back salary in fashioning a penalty less severe than termination.

============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================

Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime

Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime
Mieles v Safir, 272 AD2d 199

The Mieles case provides an example of the application of the exception to statute of limitations set out in Section 75.4 of the Civil Service Law. Section 75.4 provides that the relevant statute of limitations for bringing disciplinary action does not apply where the incompetency or misconduct alleged would, if proved in a court of appropriate jurisdiction, constitute a crime.

Manuel Mieles, a New York City police officer, was dismissed from his position after being found guilty of having used false pretenses to trick the owner of a broken-down vehicle into giving him the title to the vehicle. Mieles then moved the vehicle from the street and sold it to a salvage company.

The department charge Mieles with unauthorized exercise of his official functions, in violation of Section 104-01, page 3, paragraph 4 of the Police Department Patrol Guide’s prohibition against conduct prejudicial to good order, efficiency or discipline of the department.

Mieles appealed his termination. One of the grounds he contended supported vacating the disciplinary action was that the charges filed against him were untimely as they were barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4). The Appellate Division, First Department dismissed Mieles’ appeal.

The court said that [t]here is no merit to [Mieles’] argument that the charges filed against him were barred by Section 75.4’s 18-month Statute of Limitations. As the court explained, “the misconduct charged also constituted the crime of official misconduct under Section 195.00[1] of the Penal Law. Accordingly, Mieles was charged with, and found guilty of, acts of misconduct that were expressly excluded from the time bar of Section 75(4)....”

============================================

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

============================================

If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations

If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations
Matter of Funke v Eastern Suffolk BOCES, 2011 NY Slip Op 00144, Appellate Division, Third Department

Sandra R. Funke, a former teacher's assistant for special needs students, sustained a work-related injury to her neck, back and shoulder. She was awarded workers' compensation benefits and returned to work. Subsequently she amended her claim to include consequential posttraumatic stress disorder and was awarded appropriate benefits.

She retired March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Workers' Compensation Board ultimately denied her application for postretirement benefits. While the Board said that Funke’s retirement was involuntary — that is, causally related to her disability — it then concluded that her subsequent loss of earnings was due to unrelated factors not caused by her disability.

The Appellate Division disagreed with the Board’s action.

First the court said that it has "long held that a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."

As the Board credited Funke’s testimony that she retired due to pain caused by her disability, that testimony provides substantial evidence to support the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer" — i.e., that her retirement was involuntary.”

That being the case, said the Appellate Division, "an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case." Further, noted the court, once "the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations."

However, notes the decision, the failure to seek additional work does not defeat the inference that arises upon a finding of involuntary retirement or constitute proof that something other than the disability is the cause of a claimant's reduced earnings, referring to Burns v Town of Colonie, 66 AD3d at 1070, among other decisions.

Reversing the Board’s ruling, the Appellate Division remitted the matter to the Workers’ Compensation Board “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00144.htm

Dismissal for excessive absence found an appropriate disciplinary penalty

Dismissal for excessive absence found an appropriate disciplinary penalty
McKinnon v North Bellmore UFSD, 273 AD2d 240

According the Appellate Division, Second Department, dismissing an employee who is guilty of excessive absence is consistent with the Pell standard (Pell v Board of Education, 34 NY2d 222).

The North Bellmore Union Free School district dismissed Hugh McKinnon, a teacher, after he had been found guilty of charges of (1) failing to comply with the district has established call-in procedure to report his absences and (2) incompetence based on his excessive absences.

Finding that there was substantial evidence in the record to support the findings that McKinnon was guilty of the charges filed against him, the court said that it did not find that imposing a penalty of dismissal so disproportionate to McKinnon’s misconduct as to be shocking to one’s sense of fairness and dismissed his appeal.

Significantly, the court held that the charge of incompetence based on McKinnon’s excessive absences was supported by substantial evidence in the record notwithstanding the fact that the validity of the reasons for his absences was not contested by the district.

Apparently the court decided that the district’s failure to challenge the reasons tendered by McKinnon to excuse his excessive absences did not have any adverse impact on the probative value of such evidence for the purposes of finding him guilty of such charges nor did this form any basis for mitigating the penalty imposed by the district.

============================================

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

============================================

Exhaustion of administrative remedies a condition precedent to seeking judicial relief

Exhaustion of administrative remedies a condition precedent to seeking judicial relief
Dobrin v NYC PBA, Inc., Supreme Court, New York County, [Not selected for publication in the Official Reports]

It is clear that courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies.*

The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically, the courts apply this exception when it is decided that the administrative decision is a foregone conclusion.

As the Dobrin case demonstrates, the same general rule applies in lawsuits filed by an individual against his or her union.

Dobrin, a New York City police officer, apparently had sexual intercourse with a woman in the backseat of his car. The woman later filed a complaint alleging that Dobrin had raped her.

A Grand Jury declined to indict Dobrin. Dobrin, however, was also served with administrative disciplinary charges by the New York City Police Department, found guilty and dismissed from his position.*

Dobrin was a member of the New York City Patrolmen’s Benevolent Association [PBA] at the time the disciplinary hearing was held.

Dobrin complained that although the PBA was supposed to provide legal counsel to its members in such situation, it failed to do so in his case. This, he argued, constituted a breach of contract because PBA failed to supply an attorney to represent him in defending him in the disciplinary action.

Although Dobrin alleged that the PBA wrongfully, negligently, and improperly denied him counsel, State Supreme Court Justice Ira Gammerman pointed out that before Dobrin could bring such a claim, he was required to exhaust the administrative remedies available to him.

As Dobrin had not made any attempt to utilize the appeal procedures available to him under the Constitution and By-Laws of the PBA and the New York City Collective Bargaining Law, Judge Gammerman dismissed his petition.

In the words of the court, [a]lthough, [Dobrin] was allegedly denied representation, he elected not to utilize the available [PBA] appeal procedures. Instead, he brought this action. His failure to exhaust the administrative remedies available to him mandates dismissal of his complaint.

Judge Gammerman commented that the PBA’s By-Laws set out a procedure for a member to appeal a decision by the PBA denying or curtailing a request for legal assistance. In addition, said the court, the City’s Collective Bargaining Law established a Board of Collective Bargaining and gives the Board exclusive jurisdiction to prevent and remedy improper public employer and public employee organization practices.

* The courts will reject a law suit if the party filing the action failed to exhaust his or her administrative remedies and such an effort would not constitute "an exercise in futility" such as its finding that the administrative decision would be "a foregone conclusion."

** See Dobrin v. Safir, 272 A.D.2d 134, in which the Appellate Division sustained Dobrin’s termination.

Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary

Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary
Matter of Andrews v New York State Teachers' Retirement Sys., 2011 NY Slip Op 00132, Appellate Division, Third Department

Donald Andrews joined the New York State Teachers’ Retirement System [NYSTRS] in 1967. He retired in 2005 while serving as Superintendent of Schools for the Wallkill Central School District.

Andrews had also “separately served on a part-time basis” from 1986 until 2005 as the chairperson of the Mid Hudson Athletic League (MHAL). MHAL is voluntary athletic association of public and private schools and is not a participating employer in NYSTRS although it operates under a Cooperative Services Agreement of the Ulster Board of Cooperative Educational Services (BOCES). The BOCES is a participating employer in NYSTRS.

When he filed his retirement application, Andrews sought to include the compensation he earned while working for MHAL included in determining his "final average salary" for the purposes of determining his retirement allowance. NYSTRS, however, determined that the compensation Andrews had earned as MHAL's chairperson could not be included in determining his final average salary.

Andrews then filed an Article 78 petition challenged NYSTRS’ decision. Supreme Court dismissed the petition, sustaining NYSTRS’ decision and Andrews appealed.

Essentially Andrews contended that his status and services as a MHAL's chairperson should have been deemed to have been performed as a BOCES employee.

The Appellate Division said that “rather than merely looking to the titles used during an employment relationship,” it must look to the actual conduct of the parties to determine if an employer-employee relationship existed.

The court found that there was a rational basis NYSTRS determining that Andrews was not a part-time employee of BOCES during the relevant period for the following reasons:

1. MHAL's association with BOCES was as a separate entity with its own constitution, bylaws and regulations.

2. BOCES did not certify that Andrews was a BOCES employee to NYSTRS during the period he served as MHAL's chairperson, although though it was required to so certify all its NYSTRS member- employees pursuant to Education Law §520(4).

3. Andrews was employed as a school superintendent while he served as MHAL's chairperson and BOCES's rules for Cooperative Services Agreements provide that "[a] person may not be employed by both a BOCES and a school district for the same contract period."

4. Andrews’ employment contracts with Wallkill Central School District provided that while it would pay him for his work as chairperson of MHAL, MHAL would ultimately bear the responsibility of reimbursing the school district for those wages.

Consequently, said the Appellate Division, NYSTRS’ determination that Andrews was employed by MHAL was not irrational, despite the evidence to the contrary that he presented.

In Jensen-Dooling v New York State Teachers' Retirement System, 68 AD3d 1264, and in Blais v New York State Teachers' Retirement System, 68 AD3d 1266, the Appellate Division ruled that individuals must be employed by a public employer to claim member service credit in a New York State public retirement system.

Both of these actions involved the same basic issue: the denial of member service credit in the New York State Teachers’ Retirement System claimed by Jensen-Dooling and by Blais based on their employment by an entity named “Project Lead The Way”, a private, not-for-profit corporation performing services for school districts pursuant to contracts.*

In a similar type of situation, the Appellate Division held that an individual employed by a private entity and paid with funds provided by the City of New York is not “paid by the City” for the purpose of membership in the New York City Employees Retirement System [Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 63 AD3d 572].

The court explained that Richard Ivan worked for a private corporation under contract with New York City Department. of Health & Mental Hygiene. Although Ivan was paid with funds provided by the City, he was not "paid for by the city" as that term is defined in the Administrative Code of City of NY §13-101[3][a].**

* The Jensen-Dooling and Blais decisions are summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2009/12/individual-must-be-employed-by-public.html

** The Ivan decision is summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2010/03/individual-employed-by-private-entity.html

The text of the Andrews decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00132.htm