Five-year labor agreement with the Public Employees Federation tracks agreement recently agreed upon with CSEA

The following press release was posted by the Governor's Press office on July 16, 2011 at 12:10 p.m.

GOVERNOR CUOMO ANNOUNCES FIVE YEAR LABOR AGREEMENT WITH THE PUBLIC EMPLOYEES FEDERATION

Governor Andrew M. Cuomo today announced that his administration has reached a five-year labor agreement with the New York State Public Employees Federation (PEF). PEF is one of the largest local white-collar unions in the United States and is New York's second-largest state-employee union. PEF represents 54,000 state employees.

The agreement mirrors an agreement reached last month with the Civil Service Employees Association (CSEA) and includes a freeze on base wages for 3 years and a redesign of the employee health care contribution and benefit system, saving $75 million this fiscal year, $92 million next fiscal year, and almost $400 million over the contract term. If adopted by the state's other collective bargaining units, the agreement will reduce workforce costs by over $1.5 billion over the course of the agreement, averting PEF layoffs due to the state’s fiscal crisis. “

"This agreement reflects the financial reality of the times. I am pleased that we could avoid these layoffs, protect the workforce and the taxpayer," Governor Cuomo said.

"This was a difficult agreement to reach, but with our members' jobs in peril and the state’s fiscal hardship we've stepped up and made the necessary sacrifices," said PEF President Ken Brynien. "The agreement will preserve our members jobs and careers while bringing long term fiscal stability to the state. We are confident this is the best agreement that could be negotiated in the current environment."

As a result of this agreement, Director of State Operation Howard Glaser directed agencies to rescind the 20-day layoff notices that were sent out to members.

Base Wages: Under the five year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12: 0%
2012-13: 0%
2013-14: 0%
2014-15: 2%
2015-16: 2%

Savings: The 2011 wage agreement is $2.5 billion less costly to the state than the 2007 agreement, if adopted through the state workforce.

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system which will save $54 million annually and $248 million over the contract term, for PEF alone.

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The contribution for health care benefits have not changed in 30 years, while the cost of the state's health care program has increased 100 percent in the past decade. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Savings: The PEF agreement results in $42 million in annual savings from this provision, and $193 million over the contract term.

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively. This will save the state thousands of dollars for each employee who opts out.

Savings: The opt-out will save $5.8 million annually and $25 million over the contract term for PEF alone.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Savings: The PEF savings for this provision are $8.6 million annually and $37 million over the contract term.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Savings: The furloughs will yield $360 million in savings if adopted by all bargaining units. Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Layoff Protection: PEF employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

The tentative agreement must be ratified by PEF rank and file members.

Negotiations for the State were led by a special team appointed by the Governor comprising Todd R. Snyder, Senior Managing Director of Rothschild Inc. and Co-Head of Rothschild's Restructuring and Reorganization group; and Joseph M. Bress, former head of the Governor's Office of Employee Relations and former Vice President of Labor Relations at Amtrak, under the direction of Howard Glaser, Director of State Operations.

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Arbitrating an employee’s termination after a random drug test proved positive

Arbitrating an employee’s termination after a random drug test proved positive

Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO, Petitioner-Appellant, v New York City Department of Transportation, 35 A.D.3d 211, Motion for leave to appeal denied, 9 N.Y.3d 805

A ferryboat deckhand employed by the New York City Department of Transportation [DOT] was terminated because he was unable to provide a urine sample during a random drug test. The test was administered eight days after DOT instituted a "Zero Tolerance Policy for Positive Drug and Alcohol Test Results."

DOT’s new policy was adopted in response to the Staten Island Ferry accident on October 15, 2003. That accident involved a DOT ferryboat pilot who had taken medically prescribed drugs colliding with a concrete pier. 11 passengers were killed and dozens of others injured as a result of the collision.

In addition to testing positive for drugs or alcohol, DOT’s zero tolerance policy applied if an employee refused to submit to a drug or alcohol test as defined under Title 49 Part 40 of the Code of Federal Regulations. It also applied if an individual failed to provide at least a 45 ml urine sample within 3 hours of their first unsuccessful attempt to provide a sample unless it was determined that there was a medical reason for such failure.

A deckhand was unable to produce a sufficient urine sample, despite consuming an unspecified amount of liquid during the 2½; hours between his two attempts. DOT terminated him pursuant to its “Zero Tolerance” policy. The union grieved the deckhand’s dismissal and ultimately the matter was submitted to arbitration.

The arbitrator modified the penalty of dismissal to a 30-day suspension after finding that there were mitigating circumstances -- DOT’s failure to produce key witnesses – that supported imposing a lesser penalty.

Supreme Court, however, refused to confirm the arbitration award, holding that the arbitrator exceeded his power because the “award violated public policy” and, considering the recent Staten Island Ferry accident, was irrational and "devoid" of common sense. The Appellate Division reversed the lower court’s ruling and affirmed the arbitrator’s determination.

The Appellate Division ruled that DOT’s failure to produce the witnesses deprived the deckhand “of the opportunity to challenge the reliability of the test and whether the procedures specified in the regulation were followed.”

The Appellate Division pointed out that an arbitration award may be vacated if it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power," citing Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33. On the other hand, the court noted that “These exceptions are to be narrowly read in light of the strong federal and New York public policies favoring resolution of labor disputes by arbitration.”

The Appellate Division then concluded that none of these exceptions applied to the arbitration award in this instance. It said that the following test applied:

A public policy whose violation warrants vacatur of an arbitration award must entail "strong and well-defined policy considerations embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator," citing New York State Correctional Officers & Police Benevolent Assoc., 94 NY2d 321.

In contrast, said the court, policies that are merely "general considerations of supposed public interests" are not sufficient grounds for vacating an arbitrator’s award.

In this instance the Appellate Division ruled that the arbitration award did not violate a strong, well-defined public policy because DOT’s Zero Tolerance Policy for Positive Drug and Alcohol Test Results was not expressly embodied in constitutional, statutory or common law.

The “Zero Tolerance Policy” was adopted as DOT’s new internal policy shortly before the individual was tested.

The New York City Administrative Code § 12-307(b) — which provides generally that the City and other public employers have sole authority over all aspects of the work and discipline of their employees, and generally removes those areas from the scope of collective bargaining — does not embody a public policy violated by the award. since that provision also states that matter concerning “the practical impact that decisions have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.”

Clearly, said the court, the zero tolerance drug policy is a disciplinary matter that has a "practical impact" on the "terms and conditions of employment, including, but not limited to, . . . employee safety." Accordingly, it is "within the scope of collective bargaining…." Thus, ruled the court, Local 333’s challenging the impact of the application of the policy on an individual in the negotiating unit is within the scope of the broad arbitration clause set out in the collective bargaining agreement.

Holding that the arbitrator’s decision was reasonable and justified by the evidence, or lack thereof, in the record, the Appellate Division decided that the arbitrator had not exceeded his powers.

The court said that the relevant collective bargaining agreement contained a broad arbitration clause covering disputes such as these. Accordingly, this allowed the arbitrator to provide or direct the relief or remedy he saw fit under the circumstances.

The full text of decision is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Local+333

Quid pro quo sexual harassment

Quid pro quo sexual harassment

Pipkins v City of Temple Terrance [FL], CA11 267 F.3d 1197

In the Pipkins case the Eleventh Circuit Court of Appeals decided that harassment at the worksite as a result of a “failed consensual sexual relationship” did not support a quid pro quo sexual harassment claim filed pursuant to Title VII.

An employee alleged that she had suffered sexual harassment and retaliation within the meaning of Title VII and sued her employer, the City of Temple Terrace, Florida. A federal district court judge granted the city's motion for summary judgment and the employee appealed.

According to the decision,”[f]rom approximately June 1993 until May 1994, the employee maintained an on-again, off-again personal relationship with Daniel Klein, the City's Finance Director and Assistant City Manager. Klein was not the employee's immediate supervisor. After the employee and Klein ceased to have a sexual relationship the employee claimed that Klein continued to pursue her romantically....”

Initially given “exemplary job evaluations,” after October 1994 the employee's performance ratings began to suffer. She attributed this to the termination of her relationship with Klein and told the City's Human Relations Specialist of her concerns.

The employee alleged that in December 1994, the City Manager overheard a conversation between herself and Klein indicating the personal nature of their former relationship. After the City Manager completed an investigation, Klein was notified that he should immediately commence seeking alternate employment. Klein left the City's employ in June 1995.

The employee's job evaluations continued to deteriorate, scoring lower on her May 1995 evaluation than she had on previous ones, and worse yet on her October 1995 evaluation. As a result, The employee resigned effective January 2, 1996, approximately six months after Klein left the City's employ. She sued, claiming constructive discharge.

To establish prima facie case of quid pro quo sexual harassment, the employee was required to show: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome sexual harassment; (3) that the harassment was based on her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment; and (5) that there is a basis for holding the employer liable.

As to the issue of what constitutes sexual harassment at the work site, in Oncale v Sundowner Offshore Services, Inc., 523 U.S. 75, the Supreme Court said that “[t]he critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed”.

The Circuit Court said that based on Oncale, the employee did not meet the third factor -- she cannot establish that the harassment complained of was committed by reason of her sex.” Earlier rulings had distinguished between actions based on discriminatory animus and those based on personal animosity resulting from failed consensual relationships. In this case the court found that the consensual nature of the relationship between [the employee] and Klein and any resulting feelings of enmity determinative -- it was the result of personal animosity rather than any discriminatory animus.

Most of the actions of which the employee complained were committed by her immediate supervisor, Florence Lewis-Begin, rather than by Klein.

The employee contended, but offered no evidence, that Lewis-Begin was motivated by her friendship with Klein's wife to criticize her job performance. The court said that such motivation would be attributable to personal animosity and would not meet the Title VII requirement that the alteration of terms and conditions of employment be “because of... sex.”

The court, however, was quick to point out it was not deciding whether or not “once a consensual relationship between a supervisor and a subordinate is established, the subordinate could never then become victim to quid pro quo sexual harassment by that supervisor subsequent to the termination of the relationship.”

As to the employee's retaliation claim, the court found that her continuing negative evaluations were in response to well-documented job performance deficiencies. Although the employee claimed constructive discharge, her working conditions were not “so difficult ... that a reasonable person would have felt compelled to resign.”

As to repeatedly receiving poor evaluations, the court said that this would be unpleasant for anyone, but it does not rise to the level of such intolerable conditions that no reasonable person would remain on the job. The Circuit Court's conclusion: Viewing the facts in the light most favorable to [the employee], we agree with the district court's finding that harassment, if any, suffered by [the employee] was not the result of her gender, but rather in response to possible disappointment Klein may have experienced as a result of their failed relationship. We also agree that [the employee] has failed to establish a retaliation claim as a matter of law.

The lower court's dismissal of the employee's complaint was sustained.

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Matter of Hawley v Village of Penn Yan, 35 A.D.3d 1270

This case arose when Robert Hawley submitted a Freedom of Information [FOIL] request to obtain a list of all of the telephone calls made and received by the Mayor of the Village of Penn Yan for a two-month period on a cellular telephone paid for the Village.

Responding to his request, the Village provided Hawley with the list of all of the mayor’s cell phone calls for the period requested but one. It did not provide that one telephone number because it was an “unlisted” number.

In the litigation that followed, the Appellate Division said that Supreme Court had “properly granted [Hawley’s] petition only in part, granting [Hawley] "the right to examine all requested telephone records, excluding unlisted wired and wireless numbers."

The general standard applied by the courts: "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government."

The basic concept underlying FOIL -- all public documents are available to the public. However, an agency may, but is not required to, deny public access to documents if such records or documents fall within one or more of the "exemptions from disclosure" allowed under FOIL. Unless access or disclosure is otherwise specifically prohibited by law, the basic rule is that only those records that fall within the statutory exceptions may be withheld from the public if the custodian of such records, as a matter of exercising discretion, elects to do so.

In addition, a public body may exercise its discretion and apply the exemption to disclosure where disclosure “would constitute an unwarranted invasion of personal privacy" (Public Officers Law §87[b]).

According to the decision, the question to be resolved in the context of this appeal was "What constitutes an unwarranted invasion of personal privacy as measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities?”

The Appellate Division said that this determination requires “balancing the competing interests of public access and individual privacy." In the court’s view, a situation in which a person chooses to have an unlisted phone number suggests that disclosure of the number would, in that individual’s view, be unnecessarily intrusive or result in an unwarranted invasion of personal privacy, citing NY Dept. of State Commission on Open Government, Advisory Opinions 9197 and 8740.

The court decided that in this instance FOIL did not require the disclosure of the unlisted telephone numbers Hawley asked to have revealed.

Resignation from a position in the public service must be in writing

Resignation from a position in the public service must be in writing

Plainedge UFSD v Raymond, Decisions of the Commissioner of Education 14644

The Commissioner's ruling in the Plainedge case points out the critical importance of the written resignation.

Early in 2001 Plainedge Union Free School District board member Donald Risucci announced that he was resigning from his position effective June 30, 2001. The district decided to include Risucci's “soon to be vacant” seat on the ballot of its annual school election in order to save the school district the approximately $7,000 that a special election would cost.

Ralph Raymond won the election for Risucci's seat and asked to be seated immediately. He was told that “the seat would not become vacant until June 30, 2001, the effective date of Risucci's resignation.

The school attorney had advised the superintendent that “Risucci's resignation did not meet legal standards and was a nullity.” Apparently Risucci had not submitted his resignation in writing as required by Section 31(2) of the Public Officer Law. An oral resignation does not satisfy the requirements of Section 31(2). Raymond, therefore, could not take office because no vacancy existed. In other words, Risucci was still a member of the board because he did not submit a lawful resignation. Raymond appealed his being denied a seat on the board to the Commissioner of Education.*

The Commissioner agreed that Risucci's March 8, 2001 announcement of his intention to resign at a board meeting did not constitute a valid resignation from the board. As the Attorney General indicated in a formal opinion [1971 Opinions of the Attorney General 12], a member of a school board, whether elected or appointed, is a public officer. Thus his or her resignation is subject to the mandates of Section 31 of the Public Officers Law. The Commissioner's decision notes that Section 31(2) requires that:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing.

It should be noted that Section 31(2) specifically addresses the “more than thirty day” situation -- i.e., what is the effective date of the written resignation if it specifies it is to take effect more than thirty days after its delivery?

Section 31(2) provides, in pertinent part, that if the written resignation specifies an effective date that is more than thirty days subsequent to the date of its delivery or filing the resignation shall take effect thirty days from the date of its delivery or filing.

In other word, had Risucci simultaneously submitted his written resignation at the time he orally announced his intention to resign indicating that the effective date of the written resignation was to be June 30, 2001, his resignation would have taken effect thirty days after his written resignation was delivered notwithstanding the fact that its terms demonstrated that Risucci intended that it not take effect until June 30, 2001. 

* The requirement that resignations be in writing also applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. 4 NYCRR 5.3, which applies to individuals subject to the Rules of the New York State Civil Service Commission, provides as follows: Resignation. (a) Resignation in writing. Except as otherwise provided herein, every resignation shall be in writing.

4 NYCRR 5.3 also provides that “If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority.” If an effective date is specified in a resignation, the Rule provides that it shall take effect on such specified date. However, if a resignation is submitted while the employee is on leave of absence without pay, such resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence.”

Further, in the event an employee submits his or her resignation when charges of incompetency or misconduct have been or are about to be filed against the employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his or her termination shall be recorded as a dismissal rather than as a resignation.

Many local civil service commissions have adopted similar rules.

Eligibility for accidental disability retirement benefits as the result of an event that occurred while the individual was off-duty

Eligibility for accidental disability retirement benefits as the result of an event that occurred while the individual was  off-duty

DeBoer v Hynes, 287 AD2d 626

Gregory J. DeBoer was eligible for disability benefits resulting from work-related injuries pursuant to Section 207-c of the General Municipal Law. The question here: Are Section 207-c benefits available to an otherwise eligible individual if he or she is injured while off-duty?

DeBoer, was injured while attempting to make an off-duty arrest of individuals allegedly vandalizing his premises. He applied for Section 207-c disability benefits. Clearly, if he had suffered the injury while on duty, he would have been eligible for Section 207-c benefits.

Charles Hynes, the Kings County District Attorney, denied DeBoer's application for Section 207-c line-of-duty benefits because it resulted from DeBoer's actions while he was off-duty. The Appellate Division said that this was incorrect.

The court said that Hynes' Section 207-c decision should be annulled, “as the determination that the [DeBoer] did not sustain injuries in the performance of his duties was an improvident exercise of discretion.”

The court's conclusion: Under these circumstances, DeBoer was entitled to line-of-duty benefits pursuant to Section 207-c retroactive to February 21, 2000.

Representation by a layperson in an administrative disciplinary proceeding

Representation by a layperson in an administrative disciplinary proceeding

Sam v Metro-North Commuter Railroad, App. Div., 1st Dept., 287 AD2d 378

One of the issues in the Sam v Metro-North Commuter Railroad was Sam's contention that he was denied administrative due process because a non-attorney union official rather than an attorney served as his representative at a disciplinary hearing.*

Carlson Sam, an employee of Metro-North Commuter Railroad (Metro-North), was discharged from his employment for conduct unbecoming a Metro-North employee and failing to comply with a lawful order of a Metro-North police officer. The Special Board of Adjustment, which reviewed the disciplinary administrative tribunal's trial and determination, sustained Sam's being found guilty and the penalty imposed, dismissal.

The decision states that Sam was found guilty of leaving his assigned post and becoming involved in an altercation with a homeless man whom he though had stolen his car radio. The altercation, in which both plaintiff and the homeless man brandished weapons, spilled over into the terminal and into the track area of the station. Sam refused to obey the orders of Metro-North Police present during the incident, and Metro-North police officer Barreto had to physically removed the weapon from Sam's control and wrestle him to the ground and arrested him.

In reaching its decision, the Board noted multiple reasons justifying Sam's termination, including the fact that he left his assigned post, engaged in a violent altercation, refused a police officer's lawful order to lay down his weapon, and engaged in conduct requiring his forcible arrest. As to the penalty of dismissal, the Board found that termination was warranted since Sam, who only had three years of seniority, had already been disciplined several times previously.

Sam then sued Barreto and Metro-North asserting claims of assault, false arrest, false imprisonment, malicious prosecution, defamation, as well a claim that his 42 USC 1983 civil rights were violated.

As to Sam’s assertions concerning the lack of counsel, the Appellate Division agreed that he was not represented by an attorney at his administrative trial. However, said the court, “here the absence of counsel is not determinative since [Sam] was represented by a union official whose competence and experience were amply demonstrated by the trial record.”

The union representative “thoroughly questioned the various witnesses, raised appropriate objections, and requested a continuance to present additional witnesses, a request that was granted.” This, in the view of the court, provided Sam with appropriate representation for the purposes of satisfying administrative due process in a disciplinary setting.

* Section 75.2 of the Civil Service Law provides that an individual against whom disciplinary charges have been preferred may be represented by an attorney or by a representative of a recognized or certified collective bargaining organization.