The Union's duty of fair representation

The Union's duty of fair representation

UFT Local 2 v NYC Board of Education, 34 PERB 4553

John Zito, a New York City teacher, was served with a notice of discipline pursuant to Section 3020-a of the Education Law while he was on an “extended sick leave” of absence without pay. He was told that he was to be suspended with pay pending resolution of the charges in accordance with Section 3020-a. The charges: excessive absenteeism and neglect of duty.

The problem: according to the decision, Zito refused to terminate his “leave of absence without pay for restoration of health,” a condition precedent to his being placed on leave with pay in connection with his being suspended in accordance with Section 3020-a. In the words of an internal union memorandum concerning the situation: “Zito wants to receive his salary while on a leave of absence without pay.”

Despite the union's position that there was no merit to Zito's seeking to have the Section 3020-a charges dismissed, he filed a grievance alleging the district's action violated various provisions of the collective bargaining agreement.

UFT Local 2, after consultation with its attorneys and others, had declined to process Zito's grievance seeking dismissal of the disciplinary charges to “Step 3”.* Local 2 concluded that insofar as relief sought by Zito -- restoration to the payroll while continuing on sick leave without pay -- “no contractual provision governed Zito's situation and that a grievance would, therefore, not be meritorious.” Zito response to the Local's decision: he filed charges with PERB alleging that the union had violated its duty of fair representation.

PERB's Administrative Law Judge [ALJ] Philip L. Maier ruled that the evidence did not demonstrate that the UFT acted in an arbitrary, discriminatory or bad faith manner when it refused to move Zito's grievance to Step 3. Further, said Maier, even if the UFT's decision not to process the grievance to Step 3 was incorrect, “this mistake would not in and of itself rise to the level of a violation of the [union's] duty of fair representation.” The test announce by the ALJ to be used to determine if a union has violated its duty of fair representation: A union violates its duty of fair representation if a charging party's interpretation of the merits of the grievance is “the only possible interpretation,” but the union nevertheless refuses to process the grievance, since such action amounts to arbitrary conduct.

Concluding that Zito's interpretation of the contract clauses he contended had been violation was not the only possible interpretation of the collective bargaining agreement, Maier dismissed the improper practice charge filed against Local 2.

* The collective bargaining permitted an employee to process a grievance at Steps 1 and 2; only the UFT could process a grievance to Step 3.

Concerning filing a timely Article 78

Concerning filing a timely Article 78

Budihas v Board of Education, 285 AD2d 549

Bonilla v Board of Education, 285 AD2d 548

When does the four-month Statute of Limitation to file a timely Article 78 petition begin to run? This critical issue involving the State's adjective law is explored in the Budihas and Bonilla cases.

The Budihas Case

On April 8, 1998, Stephen J. Budihas was told that his employment as a probationary principal would be terminated “as of the close of business on May 1, 1998”. Ultimately, the decision to terminate Budihas was sustained by the Chancellor of the Board of Education of the City of New York on April 8, 1999.

On July 30, 1999, Budihas filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking to overturn the Chancellor's decision. The Appellate Division, Second Department, affirmed a Supreme Court decision holding that Budihas' petition was untimely.

The court pointed out that “a determination to terminate probationary employment becomes final and binding on the date the termination becomes effective,” citing Frasier v Board of Education, 71 NY2d 763. Accordingly, said the court, Budihas' petition, filed on July 30, 1999, is clearly time-barred.

Courts, usually in cases involving employee timeliness claims in civil rights litigation, have ruled that the Statute of Limitations commence to run when the decision to terminate an employee is communicated to the individual rather than the effective date of the termination. The leading case addressing this issue: Delaware State College v Ricks, 449 US 250.

The Bonilla Case

 

The Bonilla case, however, in addition to the issue of the “timeliness” of an Article 78 challenging an employee's dismissal, concerned the timeliness of an appeal from an administrative decision affirming the unsatisfactory performance evaluation underlying the employee's termination.

On June 26, 1998, New York City teacher Carmelo Bonilla was terminated from his position as a provisional [sic] science teacher. Bonilla had received an unsatisfactory rating of his teaching performance.

However, the final decision sustaining Bonilla's unsatisfactory performance rating was not issued by the Chancellor of the Board of Education until March 25, 1999. On July 20, 1999, Bonilla filed an Article 78 petition seeking to have his unsatisfactory rating annulled and an order directing his reinstatement to his former position with back pay and benefits.

The Supreme Court dismissed Bonilla's petition in its entirety as time-barred, ruling the Statute of Limitations began to run on the date Bonilla's employment was terminated in June 1998. The Appellate Division disagreed in part with this ruling, holding that the “Supreme Court erred in dismissing the entire proceeding on the ground that it was barred by the Statute of Limitations.”

Clearly, said the court, an Article 78 proceeding against a public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding. Thus that part of Bonilla's Article 78 petition seeking a review of determining to dismiss him effective June 26, 1998, is barred by the four-month Statute of Limitations because this determination became final on the effective date of his discharge.

In contrast, said the court, that part of Bonilla's Article 78 petition challenging the March 25, 1999 determination by the Chancellor, sustaining Bonilla's unsatisfactory rating was not time barred.

Bonilla, explained the Appellate Division, had a right to administrative appeal his unsatisfactory evaluation as well as a hearing to test that determination. The hearing panel's recommendation did not become final until the Chancellor issued a decision acting upon it. Accordingly, the determination that Bonilla's teaching performance was unsatisfactory did not become final and binding until the Chancellor denied his appeal and sustained the rating.

The court annulled Bonilla's unsatisfactory rating “since the [Board of Education conceded] that it was not preceded by an inspection of [Bonilla's] work and a consultation with him by the appropriate official.”

As Bonilla's Article 78 attack on the Chancellor's determination has survived [and assuming his was a probationary, in contrast to holding a provisional appointment], he may ultimately prevail in his quest for reinstatement if he can demonstrate that the performance evaluation underlying his termination was arbitrary or capricious or was otherwise materially defective.

If, on the other hand, Bonilla was, in fact, appointed as a provisional employee, presumably any further proceeding would be solely in the nature of a “name-clearing” hearing.

Union's right to obtain information

Union's right to obtain information

Schuyler-Chemung-Tioga Educational Asso., 34 PERB 3019

The Public Employment Relations Board concluded that it was an improper practice for the Schuyler-Chemung-Tioga BOCES to refuse to provide the Educational Association with information it said it required in connection with its investigation of a possible grievance.

Although PERB noted that it had ruled that a refusal to provide information may result in a charge alleging “a refusal to negotiate” under Section 209-a.1(d) of the Taylor Law, such a refusal may also constitute a violation of Section 209-a.1(a) of the Act.

In the words of PERB “[t]he [employer's] denial of a reasonable demand for information which is relevant to collective negotiations, grievance adjustment, the administration of a collective bargaining agreement, or the resolution of an impasse ... impairs the union's ability to effectively represent the interests of employees in the unit.

The duty of the employer to provide the union with such information is not unlimited, however. The duty to provide information in the context of a grievance procedure is circumscribed by the “rules of reasonableness,” including the burdensomeness of the request, the availability of the information through other sources, the relevancy of the information and its necessity.

Dismissal of correction officer found guilty of failure to act in situation involving an inmate-on-inmate assault recommended

Dismissal of correction officer found guilty of failure to act in situation involving an inmate-on-inmate assault recommended

Dep’t of Correction v. Connell (in PDF), OATH Index No. 1598/11

OATH Administrative Law Judge Tynia Richard found that a correction officer assigned to a mental observation unit permitted an inmate-on-inmate assault inside a cell, passively stood by as inmates entered and exited the cell, failed to properly perform lock-in/lock-out procedures, failed to report the assault, and failed to obtain medical attention for the injured inmate.

ALJ Richard found “convincing video evidence also showed the officer participating in the assault, although he did not strike the inmate.”

ALJ Richard recommended termination of employment, in part due to the failure of the officer, a long-term employee, to testify and offer an explanation for his actions or any mitigation evidence.

Filing an election of a retirement option

Filing an election of a retirement option

Matter of Leisten, 285 AD2d 897, Motion to appeal denied, 97 NY2d 605

If nothing else, the Leisten decision serves as a reminder that it is the responsibility of the member of the retirement system to file the form designating his or her beneficiary and the form required for the selection of the retirement option he or she desires with the retirement system.

Faced with a terminal illness, David Leisten filed a request for an estimate of retirement benefits which would be payable under the joint allowance-full option, naming his wife, Pearl Leisten, as his intended beneficiary. In response to his request, the New York State Employees' Retirement System [ERS] sent Leisten an estimate of amounts payable under the various retirement options together with a blank option election form that was to be completed and filed with ERS within a specified time. The form specifically noted that if an option election is not timely filed, “the law requires that you be retired under the cash refund contributions option”.

The joint allowance-full option Leisten indicated he wished to elect in his request to take early retirement would have entitled his widow to monthly payments of $880 for the remainder of her life. ERS, however, could not find a completed option election form in its files. Accordingly, ERS told Pearl Leisten that it was bound to apply the cash refund-contribution option, entitling her to receive only a full ordinary death benefit: $49,000.

The court said that “while an employee is authorized to elect from several retirement payout options ... such election must be received and filed prior to the retiree's death to be effective.” As the record contained testimony highlighting the difference between the naming of an intended beneficiary in an early retirement request and the designation of a beneficiary in a legally effective option election, the Appellate Division sustained ERS's decision that Pearl Leisten was only entitled to an ordinary death benefit as supported by substantial evidence.

The lesson here: members must make certain that a timely designation of beneficiary and the benefit option the member wishes upon retirement is on file with the retirement system. 

Employees disciplined for insubordination after failing to report co-worker's misbehavior

Employees disciplined for insubordination after failing to report co-worker's misbehavior

Hoey v PERB, 284 AD2d 633

Teacher aides employed by the Cayuga-Onondaga Board of Cooperative Educational Services [BOCES] were given specific instructions to report any concerns about classroom matters -- they were immediately to bring them to the attention of the supervisor of special education or the school principal.

According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students. About a month later, they reported the teacher's suspected conduct to one of their union representatives rather than BOCES's management. Two days later the union representative told BOCES of the aides' report.

Cheryle Hoey and a number of other aides were terminated after being found guilty of insubordination -- failing to comply with directives given to them directing them to report "concerns involving classroom matters." Hoey and the others challenged their dismissal, contending that they had been disciplined because of their engaging in protected union activities and filed improper practice charges with PERB.

PERB rejected the complaint and held that BOCES had not engaged in any improper practice in firing the aides. The Appellate Division sustained PERB's determination. The court ruled that the evidence amply supported PERB's findings that the aides had not been terminated for engaging in a protected activity but, rather, for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.

Although PERB agreed that the aides had engaged in a protected activity when they consulted with representatives of their union, it further determined that BOCES was not improperly motivated but, rather, had legitimate business and educational reasons for terminating Hoey and the other aides.

Freedom of Information requests

Freedom of Information requests

Chittenden v Novack, NYS Supreme Court, Westchester County, [Not selected for publication in the Official Reports]

In Chittenden, the court considered a number of issues concerning a union president's request for certain records under the Freedom of Information Law [FOIL]. Responding to a number of issues presented by the union's demand for information and records pursuant to FOIL, the court said:

1. A grievance procedure under the collective bargaining agreement was not the proper procedure for appealing the denial of FOIL requests.

2. A FOIL request for the names of all members of the police department who have been on chronic sick leave, with six questions regarding each member, is not a specific request for records.

3. Records disclosing the medical history of employees or applicants are exempt as an unwarranted invasion of personal privacy under the Public Officer's Law Section 89(2)(b)(i).

4. Attendance records or time sheets for employees that are redacted as to the medical reason for the absence are not an unwarranted invasion of personal privacy.

5. Records containing statistical data, such as the amount of sick time or vacation time accumulated or used, dates or times of an employee's attendance or absence, notations that sick leave or vacation time was charged, are relevant to public accountability and subject to disclosure.

6. Public inspections of portions of employment records or applications, which reveal an existing medical condition and/or treatment for disabilities is exempt from disclosure as “medical histories.”

7. A records access officer is not required to answer questions or analyze information on behalf of individuals or organizations making the request.

8. The agency must supply appropriate records upon its receipt of a proper request, provided such records exist, but is under no obligation to furnish records, which do not exist.

9. Intra-agency materials not subject to disclosure under FOIL. According to the ruling, “opinions, advice, evaluations, deliberation, proposals, policy formulation, conclusions or recommendations are exempt from public access” under FOIL, as are a government agency deliberative functions.

NYC Department of Sanitation employee acquitted of disciplinary charges

NYC Department of Sanitation employee acquitted of disciplinary charges

Dep’t of Sanitation v. Gonzalez (in PDF), OATH Index No. 1915/11

An OATH Administrative Law Judge found that the New York City Department of Sanitation failed to prove that a sanitation worker solicited money from an apartment building superintendent in order to remove broken furniture.

Judge John B. Spooner found that several factors, including the passage of time, an investigator’s failure to preserve a clear contemporaneous account from the complainant, and the complainant’s apparent confusion about another incident with a different worker two days later, undermined the Department’s proof and warranted dismissal of the charges. 

Contacting a party in an administrative proceeding using his or her last known address

Contacting a party in an administrative proceeding using his or her last known address

NYS National Organization for Women v Pataki, CA2, 261 F.2d 156

Courts sometimes provide insights into administrative due process procedures in the course of considering a case that essentially focuses on a completely different issue. In the National Organization for Women [NOW] case, which concerned due process in the adjudication of alleged violations of an individual's civil rights, one of the ministerial issues considered by the Circuit Court of Appeals, Second Circuit, was an administrative agency's duty to “track down” an individual.

In this “class action,” NOW sued the NYS Division of Human Rights [Division] on behalf of individuals who, since October 15, 1990, “had filed [or will file] complaints of discrimination with the Division and whose complaints have not been, or will not be, finally administratively adjudicated or otherwise substantively resolved within three years of the date of the filing of the complaint.” NOW alleged that the Division violated the class members' Fourteenth Amendment procedural due process rights as a result of its:

1. protracted delays in processing their discrimination claims that prejudiced such claims; and

2. deficiencies in notifying certain individuals that their claims were to be dismissed for “administrative convenience.”

One of the arguments advanced by NOW was that certain class members were not advised that the Division had dismissed their claims for “administrative convenience” because the Division was unable to locate them. It appears that these individuals had moved after filing their complaint but never advised the Division of their new address.

Was the Division incorrect when it dismissed discrimination complaints for “administrative convenience” because the Division was unable to locate the individual? The court said that the Division's use of the U.S. Postal Service to send the notice to complaints “at the last address furnished to the Division comports with due process.”

Sometimes such a “lack of notice” will become an issue in connection with a disciplinary hearing that has been conducted “in absentia.”

In “in absentia” disciplinary adjudications a hearing is held despite the employee's failure to appear at the hearing and his or her absence is unexplained. Typically the agency is required to prove its case against the employee to the hearing officer or arbitrator notwithstanding the absence of the employee or his or her representative.

Before holding a disciplinary hearing in absentia the employer or the hearing officer should make a reasonable attempt to locate the individual and determine the reason why he or she has not appeared at the hearing. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment of the hearing.

If the employee is found guilty of the charges and later challenges the determination, or the penalty imposed, on the grounds that he or she never received any notice of the time and place of the hearing because the notice was not sent to his or her “new address,” it seems clear that the courts will not be too sympathetic to such an argument unless the individual can show that he or she advised the employer of his or her new address and the employer neglected to note the change of address in its records.

Portal to portal pay

Portal to portal pay

Manners v State of New York, 285 A.D.2d 858, [Appeal dismissed, 97 N.Y.2d 637]

Charles W. Manners, Jr., a State Officer of General Services [OGS] construction superintendent asked the Court of Claims to direct OGS to pay him overtime compensation pursuant to the Fair Labor Standards Act (29 USC 201). Manners contended that OGS, by “requiring” him to use a State vehicle to commute to and from his assigned workstation, is obligated to pay him overtime for his commuting time.

The Court of Claims dismissed his claim [183 Misc 2d 382]. The Appellate Division, Third Department agreed, holding that although “the Fair Labor Standards Act [FLSA] requires employers to pay employees for all work performed, under the Portal-to-Portal Act (29 USC 251), time spent by an employee commuting to and from work, even in an employer-provided vehicle, is not compensable”

The court noted that there was no dispute that Manners was not engaged in any work-related activity while commuting to and from his assigned work station and thus the Court of Claims properly determined that this travel time was not compensable.