PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice

PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice
Matter of Monroe County v New York State Pub. Empl. Relations Bd., 2011 NY Slip Op 05170

The Public Employment Relations Board found ruled that Monroe County had committed an improper employer practice in violation of the Taylor Law when it conducted a survey “to assess whether to hold a secret ballot election” to determine if CSEA should continue as the union representing certain of the County’s part-time employees.

CSEA had told Monroe that the CSEA unit for part-time employees was in administratorship, i.e., the CSEA local had taken over control of the part-time unit, because the unit no longer had any officers “to run it.”  Although Monroe had agreed to negotiate with CSEA concerning the part-time workers in the unit, it mailed all of its part-time employees represented by CSEA a letter and survey form underlying CSEA’s improper practice charge.

PERB affirmed its hearing officer’s determination that Monroe had "interfered with, restrained and coerced employees in the exercise of protected rights." Monroe appealed, seeking to annul PERB's determination while PERB counterclaimed seeking enforcement of its remedial order.

The Appellate Division concluded that substantial evidence supported PERB's determination that Monroe had violated Civil Service Law §209-a (1) (a) by conducting the survey. The court rejected Monroe’s claim that it was acting appropriately and was justified in sending out the survey based on a provision in the prior collective bargaining agreement.

The provision relied on by Monroe stated that CSEA's "representative status shall continue as long as it represents a majority of the bargaining unit employees, provided that if [Monroe County] receives evidence that thirty percent or more of the unit employees are questioning this status, the parties will conduct a secret ballot election conducted by PERB to determine representative status."

The Appellate Division ruled that PERB’s finding that this language did not provide Monroe with the authority to actively solicit employees' opinions regarding their potential dissatisfaction with CSEA's union representation nor did Monroe have authority under the regulations to seek decertification of CSEA was “rational.” It commented that courts give deference to PERB's interpretation of a collective bargaining agreement, which is within PERB's area of expertise, as long as that interpretation is reasonable, rational and supported by the language of the agreement.

Notwithstanding Monroe’s concerns regarding CSEA's ability to effectively represent its employees in the part-time unit, the Appellate Division decided that PERB “reasonably determined that this concern did not permit [Monroe County] to conduct a survey. Accordingly, said the court, PERB was entitled to a judgment of enforcement of its remedial order.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05170.htm

Pension benefits and marital property

Pension benefits and marital property

DeLuca v DeLuca, 97 N.Y.2d 139

Retirement benefits frequently are an important factor in a divorce. In the DeLuca case the Court of Appeals ruled that retirement benefits from the New York City Police Superior Officers Variable Supplements Fund [VSF] are marital property subject to equitable distribution in a divorce proceeding.

New York City Detective Crescenzo DeLuca divorced his wife, Maria, after 30 years of marriage. Before the divorce became final, DeLuca retired and began receiving VSF benefits in addition to his regular pension benefits.

A New York Supreme Court justice subsequently granted Crescenzo the divorce. As part of the equitable distribution of Crescenzo's assets, the court awarded Marie half of his past and future VSF payments. The Appellate Division, however, modified the award (276 AD2 143), holding that VSF benefits were not marital property on the theory that VSF benefits were not pension benefits under the City's Administrative Code Section 13-279[b].

The Court of Appeals disagreed, holding that the VSF was subject to equitable distribution in a divorce proceeding. The court said the VSF, along with its counterpart for police officers below the rank of sergeant ... were the result of contract negotiations between the City of New York and the unions representing police officers. In 1968, both sides jointly proposed legislation allowing the Police Pension Fund, whose pension investments were limited to fixed-income obligations, to invest some of its assets in equities, such as common stock, with the hope of creating higher earnings. The additional earnings could then be used as extra post-retirement compensation to attract qualified individuals and induce long-term service.

The Court of Appeals decided that whether VSF benefits constitute marital property cannot be determined by the Administrative Code provisions relied on by the Appellate Division but rather are to be determined pursuant to the relevant provisions of the Domestic Relations Law.

The general rule in such cases is that if the benefit is something of value and was earned in whole or in part during the marriage, it may be considered marital property subject to equitable distribution. Referring to Majauskas v Majauskas, 61 NY2d 481, the court pointed out that “rights in a vested but non-matured pension were marital property.”

Thus, said the court, formalized concepts such as “vesting” and “maturity” are not determinative in such situations, noting that in Olivo v Olivo, 82 NY2d 202, it ruled that compensation received after dissolution of the marriage for services rendered during the marriage is marital property.

In the words of the court, “VSF benefits are a supplement to pension fund payments and, as such, a form of compensation for past services related to the first 20 years of police employment, notwithstanding the date they mature.”

Also noted was the fact that although issues such as “vesting” and “maturity” do not raise serious obstacles to the determination that VSF benefits are marital property, they do affect valuation and distribution. 

In processing a grievance all procedural steps must be satisfied

In processing a grievance all procedural steps must be satisfied

Brown v Nassau County, 288 AD2d 216

The lesson in the Brown case: failure to follow the steps set out in a collective bargaining agreement's grievance procedure in a timely fashion may prove fatal to seeking further relief.

Larry Brown filed an out-of-title work grievance. When he and his union attempted to appeal the Step 3 determination of the Nassau County Office of Labor Relations [OLR], OLR rejected his grievance, saying that it was untimely. The Appellate Division agreed.

Brown's grievance was filed in accordance with a “five-step grievance procedure” set out in the collective bargaining agreement. OLR denied Brown's grievance at Step three and it appears that neither Brown nor the union proceeded to a Step four “advisory appeal” as set out Section 23-1.4 of the agreement.

According to the decision, the union made an untimely request that the County “schedule ... an arbitration date” following the County's unwillingness to stipulate to settle the dispute in accordance with the recommendation of a mediator.

The court noted that there was no proof that the County, in contrast to Brown and the union, the parties aggrieved by the Step 3 determination, was responsible for initiating the procedure at Step Four, or for the scheduling of the arbitration procedures.

Brown and the union sought a court order to compel arbitration of the grievance. The Appellate Division said that since there is no evidence that either Brown or the union ever timely “proceed[ed] to an advisory appeal” to either of the two alternative arbitral forums described in Section 23-1.4 of the parties' agreement, it agreed with the Supreme Court that, in light of this failure to complete the five-step grievance procedure, neither Brown nor the union could sue the County directly.

The simple answer: Had either Brown or the union followed the time requirement for perfecting the appeal to the next step, Step 4, the matter would have been subject to arbitration as permitted under the agreement.

Brown and the union also contended that they should not have been required to complete all five steps of the grievance procedure, because proceeding through all such steps would have been futile. The Appellate Division rejected this argument as being “without merit.”

Rebutting employer's defense to charges of unlawful discrimination

Rebutting employer's defense to charges of unlawful discrimination

Wallace v Methodist Hospital System, CA5, 271 F.3d 212

In the Wallace case, the Circuit Court of Appeals, Fifth Circuit, points out that an individual charging his or her employer with unlawful discrimination “must present facts to rebut each and every legitimate non-discriminatory reason advanced by [her employer] in order to survive [a motion for] summary judgment”.

Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

Frequently an individual is able to establish a prima facie case of discrimination in challenging an adverse employment decision by introducing circumstantial evidence sufficient to raise a presumption of discrimination.

Once this is done, the employer is charged with the burden of producing a legitimate nondiscriminatory reason for the adverse employment decision. If the employer provides a legitimate nondiscriminatory reason for its action, the presumption of discrimination is defeated.

It then becomes the individual's burden to persuade the trier of fact that he or she was, in fact, the victim of unlawful discrimination by showing by a preponderance of the evidence that the employer intentionally discriminated against him or her because of his or her protected status.

In the Wallace case, the Hospital did not dispute that a former nurse, Veronica A. Wallace, had established a prima facie case of discrimination. However, in response to that prima facie case, the Hospital offered two nondiscriminatory reasons for discharging Wallace.

According to the decision, the Hospital contended that Wallace had violated two of its written rules and the violation of either constituted grounds for her immediate termination under its written policies without regard to her past performance:

(1) the employee performed a procedure without receiving a physician's order even though Hospital's written policies required an order; and

(2) the employee falsified medical records.

Although Wallace admitted that she had violated both policies, she argued that she was subject to disparate disciplinary treatment, and, therefore, Methodist's stated reasons were a pretext for discrimination.

According to the ruling, at the heart of whether the district court properly found that Wallace failed to demonstrate by substantial evidence that the Hospital's explanation of its actions constituted pretext.

While Wallace contended that she had provided evidence of disparate treatment, the district court held that the examples of disparate treatment she offered did not involve “similarly situated nurses.”

The Circuit Court sustained the lower court's findings, noting that it has held that in order for a plaintiff to show disparate treatment, Wallace had to demonstrate “that the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained,” citing Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177.

Put another way, the conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer.

Here, said the court, the Hospital had shown that “with but one exception,” the nurses to whom Wallace points are not similarly situated as “they had either acted under a doctor's orders, did not need a doctor's order for their actions, or no one in a supervisory capacity was aware of the nurse's actions.”

In addition, said the court, Wallace failed to rebut the second reason advanced by the Hospital in discharging her -- falsification of medical records.

Concluding that there was no legally sufficient basis that would allow a jury to decide that Wallace had been discharged because of discrimination, the Circuit Court sustained the lower court's dismissal of Wallace's complaint.

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration
Matter of Jandrew v County of Cortland, 2011 NY Slip Op 04143, Appellate Division, Third Department

Cortland County terminated Bryon Jandrew from his position with the County.

Jandrew filed a grievance under the relevant collective bargaining agreement [CBA]. The grievance was ultimately submitted to binding arbitration in accordance with the CBA, and an arbitrator was jointly elected by the parties.

Although Cortland contended that the subject matter of the grievance was not subject to arbitration, it did not seek a stay of arbitration and agreed to have the issue of arbitrability of Jandrew’s grievance determined by the arbitrator, as well as the issues of whether Jandrew was “properly terminated” and, if not “properly terminated,” the appropriate remedy.

The arbitrator ruled that Jandrew’s grievance was arbitrable. The arbitrator then determined that Jandrew’s termination was without cause and, as the remedy ruled that the County must reinstate him to his former position with back pay and benefits.

Although Courtland then notified Jandrew's attorney that it would appeal the award and that Jandrew “should not show up to work pending the appeal,” the County neither appealed the award nor did it move to vacate or modify it. Further, the County did not restore Jandrew to the payroll or provide back pay or benefits as directed by the arbitrator.

Jandrew then filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitrator's award, whereupon Courtland filed an answer to his petition and moved to vacate the award.

Supreme Court confirmed the arbitration award and the Appellate Division affirmed the lower court’s action.

The Appellate Division rejected Cortland’s argument that the award should be vacated because the arbitrator lacked the authority to decide the controversy. The court pointed out that “A party who actively participates in arbitration without seeking a stay pursuant to CPLR §7503(b) waives the right to a judicial determination of the arbitrability of the dispute,” citing Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Education of City School District of City of New York, 1 NY3d 72.

In this instance, said the court, although the County initially took the position that the grievance was not arbitrable, it thereafter joined in the selection of the arbitrator, fully participated in the arbitration proceeding and, most significantly, itself submitted to arbitration the issue of whether the grievance was arbitrable rather than "availing itself of all its reasonable judicial remedies."

Accordingly, the Appellate Division concluded that the County had waived its right to contest the arbitrator's power to decide the controversy.

Further, said the court, “By submitting [the grievance] to arbitration, [Cortland] ran the risk that the arbitrator would find the dispute covered under the CBA, as she did, and while a contrary determination certainly would have been reasonable on the present record, it is not for us to substitute our judgment for that of the arbitrator in this regard.”

Finally, the Appellate Division rejected Cortland’s contention that the arbitrator's award violated public policy. Although an arbitration award may be vacated on this “extremely narrow ground” it may be vacated only where a court can conclude, "'without engaging in any extended fact-finding or legal analysis' that a law 'prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that "the award itself violate[s] a well-defined constitutional, statutory or common law of this State"

Simply stated, said the court, “we fail to find any strong public policy precluding parties to a collective bargaining agreement from agreeing that the disciplining of employees for failure to maintain minimum job qualifications is to be submitted to and decided by an arbitrator.”

Similarly, with respect to the County’s argument that the award usurped the County Personnel Officer's power to set minimum job qualifications, the Appellate Division said “again the Cortland failed to point to any public policy that ‘prohibit[s], in an absolute sense,’ an employer from delegating to an arbitrator the authority to determine if an employee continues to meet the minimum qualifications of his or her position.”

Considering the adage that arbitrators "may do justice as they see it, applying their own sense of law and equity to the facts as they find them to be," the Appellate Division concluded that Cortland had not established that the arbitration award should be vacated for public policy reasons.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04143.htm

Removing a candidate's name from the eligible list

Removing a candidate's name from the eligible list

Ryff v Westchester Co. Personnel Office, 287 AD2d 723

The Westchester County Personnel Office removed Michael Ryff's name from the eligible list for police officer. Ryff demanded that the Office provide him with copies of reports concerning an investigation that resulted in his previous termination from his position as a probationary police officer with the Westchester County Department of Public Safety. The Appellate Division ruled that Ryff was not entitled to be given copies of such reports.

In addition, it declined to provide “judicial intervention,” ruling that the Personnel Office's determination to remove the Ryff's name from the eligible list after affording him an opportunity to submit written opposition to the disqualification pursuant to Civil Service Law Section 50(4)(e) was neither irrational nor arbitrary.

Civil Service Law Section 50(4)(e) permits the State or a municipal civil service commission to disqualification of an individual who was dismissed from his or her position upon stated charges alleging incompetence or misconduct. Section 50(4) also authorizes a commission to disqualify an individual following an investigation of his or her qualifications and an opportunity to object to such disqualification.

Suspension of retirement allowance upon post-retirement employment

Suspension of retirement allowance upon post-retirement employment

Matter of Grella v Hevesi, 38 AD3d 113

Philip M. Grella retired effective January 1, 2003 after serving as an Assistant District Attorney in Nassau County for 24 years and six years as a Judge of the Nassau County District Court.

Grella was appointed as a Court of Claims Judge effective June 30, 2003 and administratively assigned to Supreme Court. The Retirement System notified Judge Grella that his retirement allowance would be suspended because of his postretirement employment once his earnings reached $25,000. He was also told that because he had been reemployed by the same employer from which he had retired, he could earn up to $36,000 without any diminution of his retirement allowance if he obtained a so-called 211 waiver [see Retirement and Social Security Law § 211].

In addition, the Retirement System decided that the nature of Grella post-retirement employment made him ineligible for the Civil Service Law §150 elective office exception.

The public policy in New York is that in the event a retired member of a public retirement system of this State is employed by State or a political subdivision of the State, his or her retirement allowance is suspended until he or she again retires.* The major exceptions to this policy:

1. Retirement and Social Security Law §212 sets forth limits on annual earnings which a retiree under the age of 65 may earn in public employment without diminution of his or her retirement allowance.

2. Section 150 of the Civil Service Law, which generally provides for the suspension of pension and annuity during a retiree’s post-retirement employment by the state, or of any municipal corporation, or political subdivision of the state, for compensation, does not apply where such compensation is paid in connection with jury duty, or serving as an inspector of election, poll clerk or ballot clerk under the election law, or received compensation for serving as a notary public or commissioner of deeds, or compensation received for serving in an elective public office.

3. The Section 150 exception for election to public officer does not apply in situations where the individual “subsequent to his or her retirement from an elective public office, accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.” In such cases the retiree’s retirement allowance is suspended until the date he or she vacates such elective public office, unless the amount earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in section two hundred twelve of the retirement and social security law.”

When Grella challenged the Retirement System’s determination, State Supreme Court Justice George B. Ceresia, Jr. ruled that Grella “did not accept elective public office within the meaning of Civil Service Law §150 when he was appointed by the Governor to the New York State Court of Claims” [see 10 Misc.3d 519].

Justice Ceresa said that Grella’s was appointed, rather than elected to his Court of Claims position and this was not converted to elective office merely by reason of his assignment to New York State Supreme Court, an elective position. The Appellate Division agreed and dismissed Grella’s appeal.

On another point, Judge Grella had argued that the Retirement System should be “equitably estopped” from suspending his retirement benefits because, he claimed, he relied on” erroneous advice from an Office of Court Administration [OCA] representative regarding his entitlement to receive benefits” if he accepted postretirement employment with OCA.

Although acting on this advise may have proven detrimental to Grella, the Appellate Division said the doctrine estoppel “generally cannot be invoked against the state or its agencies” because erroneous advice provided by a government employee as “this does not constitute the type of unusual circumstance” triggering the application of the doctrine. 

* The retiree’s retirement allowance is typically not affected in the event he or she accepts employment with a private sector employer, with the federal government or with another State or undertakes self-employment.

Acceptance of gifts by public officials

Acceptance of gifts by public officials

Decision of the Commissioner of Education, Decision No. 15,486

Members of the Board of Education of the Massapequa Union Free School District attended a social event sponsored by the board’s attorneys. Paul Dashefsky, claiming that as the fair market value of the reception was between $200 and $300 per person, complained that such attendance constituted a violation of district policy and General Municipal Law §805-a.

He asked the Commissioner to rule that the board members’ attendance constituted a violation of law and district policy. He also asked the Commissioner to direct the board members “to cease and desist from accepting any prohibited gifts.” Finally, Dashefsky wanted the Commissioner to direct the board members “to publicly disclose all gifts accepted during their term of service;” and to reimburse the district for the fair market value of any gifts accepted in violation of law or district policy.

Although the Commissioner dismissed Dashefsky’s appeal as untimely, he said that “Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.”

Dashefsky had the burden of demonstrating a clear legal right to the relief he sought and the burden of establishing the facts upon which he seeks relief. The Commissioner said that Dashefsky’s claim that the cost of the reception was between $200 and $300 per person was mere speculation as there was nothing in the record to confirm this allegation. Accordingly, said the Commissioner, Dashefsky failed to establish that the dollar limit set out in the statute or the policy had been violated..

The Commissioner, however, said that he felt “compelled to remind [the board members] of the gift prohibitions in the General Municipal Law and their obligations thereunder.” General Municipal Law §805-a(1) states:

No municipal officer or employee shall: a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.

The Commissioner cautioned:

“A violation of §805-a(1) occurs not only where there is an intent to influence or reward an official but also in instances where there is an appearance that a gift will influence the official (Op Atty Gen No. 89-48). Under this standard, it may “reasonably be inferred” that the reception was intended to influence, or “could reasonably be expected to influence” the board’s decision to continue its business relationship with the law firm or to reward the board for past actions, including the retention of the firm’s services.

“As public officials, board members must avoid even the appearance of impropriety. (Op Atty Gen No. 89-48). I thus encourage the individual board members to be scrupulous in their adherence to the gift prohibitions contained in General Municipal Law §805-a(1) and board policy.”