Authority of the arbitrator to fashion a remedy

Authority of the arbitrator to fashion a remedy
CCNY v Aiello, 295 A.D.2d 163

In the Aiello case, the significant issue concerned the authority of the arbitrator to fashion a remedy. The Appellate Division said that all limitations on the authority of the arbitrator set out in the collective bargaining agreement had to be observed by the arbitrator.

The case arose after the City University of New York decided not to reappoint Professor Rita Aiello for the 1999-2000 academic year. Aiello filed a grievance in accordance with the collective bargaining agreement. Ultimately the arbitrator ruled in her favor and directed that:

1. City University reappoint Aiello for one academic year if so recommended by a select faculty committee; and

2. All future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division sustained a State Supreme Court decision that vacated that part of the arbitration award directing that all future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division pointed out that although relevant provision of the collective bargaining agreement -- Section 20.5(c)(1) -- authorized the arbitrator to direct that a grievant's reappointment be decided, in effect, by a select faculty committee, "the same section also limits any such substitute decision making to "the action from which the grievance arose."

Here the grievance was triggered solely by University's decision not to reappoint Aiello for the 1999-2000 academic year. Thus, said the court, by directing that any future reappointments of Aiello had to be decided by a select faculty committee, the arbitrator exceeded the authority as set out in Section 20.5(c)(1) of the agreement.

Were this not sufficient, the Appellate Division also commented that the arbitrator had violated another contract provision -- Section 20.6. Section 20.6 provides that the arbitrator may not modify or amend the collective bargaining agreement.

In addition, the decision notes that the fact that there was some "arbitral precedent for an award like that rendered" by the arbitrator in Aiello's case cannot be relied on by her, citing New York City Transit Authority v Patrolmen's Benevolent Association, 129 AD2d 708, appeal dismissed 70 NY2d 719.

Also rejected was Aiello's argument that "the decision-making process resulting in the denial of her reappointment for the academic year 2001-2002 was so tainted as to demonstrate the truth of the arbitrator's forecast that [the University] was incapable of making fair academic judgments in her case." The appropriate course of action, said the court, would be for Aiello to again resort to the contract grievance procedure if she believed she was improperly denied reappointment in the future. 

School Board review of personnel records

School Board review of personnel records
Matter of Meyer and Pavalow and the Katonah-Lewisboro Union Free School, Commissioner of Education Decision No. 15,436

Two members of the Katonah-Lewisburg School Board asked to have personnel records of certain employees and former employees of the District brought to a Board meeting in order "to enable the Board to carry out its legal responsibilities under the Education Law." When the full board declined to go into executive session to discuss these files, the two board members appealed to the Commissioner.

The Commissioner denied the appeal, observing that “The record is devoid of any evidence that petitioners articulated specific reasons to the superintendent or the board, at any time prior to the board's vote denying their requests to review the records.” 

As the two board members failed to state specifically how reviewing these records would enable to the board to carry out its legal responsibilities, the Commissioner determined that the board's refusal to adjourn into executive session was neither arbitrary nor capricious and thus there was no violation of Part 84 by the Board.

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement  

MacKinnon v City of New York HRA, USCA, 2^nd Circuit, 08-1171-cv

[N.B. This is a Summary Order by the Second Circuit Court of Appeals. Second Circuit rulings by summary order do not have precedential effect.]

John A. MacKinnon alleged that the New York City Human Resources Administration had unlawfully discriminated against him in violation of the federal the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621. MacKinnon contended that Human Resources had unlawfully discriminated against him because of his age when it (1) decided to reduce his overtime hours because of "concern over his age" and (2) because he was "singled out for such treatment."

A federal district court judge dismissed his complaint and the Circuit Court of Appeals affirmed the lower court’s ruling, observing that the factual record did not support any of MacKinnon’s claims.

Rejecting MacKinnon theory of unlawful discrimination, the Court of Appeals said that the record indicated that the City's Human Resources Administration had reduced his "overtime hours" for two reasons:

1. “because [MacKinnon] appeared on a list of New York City’s top fifty overtime earners (a politically unpopular distinction),” and

2. “because [MacKinnon] had become eligible for retirement and his pension benefits would be based on his compensation for his last twelve months of work.”

The court held that “An employment decision motivated by pension costs, even when strongly correlated with age, is not an ADEA violation,’ citing Hazen Paper v. Biggins, 507 U.S. 604.

Termination for disruptive behavior claimed to violate the State’s Human Rights Law

Termination for disruptive behavior claimed to violate the State’s Human Rights Law
Robinson v NYC Dept. of Corrections277 A.D.2d 76

The appointing authority orders an employee who is exhibiting "disruptive behavior" to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on a theory that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.

According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984, he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a "pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers."

Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.

As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him based on "perceived disabilities." Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to DHR's finding of probable cause by first suspending and then terminating him.

The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a "belief that [Robinson] was mentally unstable or under the influence of drugs." It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.

Although the Appellate Division vacated DHR's decision for technical reasons based on "timeliness," it commented that were it to have to decide on the case on its merits, it would find Robinson's allegations of harassment to be baseless.

The Appellate Division explained, "[t]here is ample evidence of [Robinson's] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.

The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson's "behavior continued to be erratic."

The court concluded that considering DOC's "responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory."

Electronic surveillance

Electronic surveillance
The Electronic Communications Privacy Act

Employers may find themselves being sued and held liable for unlawful harassment as a result of employees using e-mail and other electronic means of communications which others find offensive or discriminatory.

For example:

1. African-American employees sued, charging that their employer, Morgan Stanley and Company [Owens v Morgan Stanley & Co., USDC, SDNY], denied them promotions because of racial discrimination in violation of Title VII and introduced as evidence racially insensitive e-mail messages transmitted via Morgan Stanley's computers.

2. In Schwenn v Anheuser-Busch, Inc., USDC, NDNY, Schwenn introduced as evidence of a hostile work environment claim "sexually explicit e-mail messages she had received."

3. Postings on the employer's electronic bulletin board were part of the basis for suing the Continental Airlines in federal district court [Blakey v. Continental Airlines Inc., NJ Supreme Court].

As a general rule, courts impose a duty to stop such forms of harassment and discrimination on employers. Employers can take steps to prevent such misuse of its electronic data equipment, or at least be able to claim it tried to do so, by instructing its workers that the use of e-mail and electronic bulletin boards under its control:

1. Cannot be used for distributing discriminatory jokes, statements or other unlawful purposes; and

2. Employees who do so will be disciplined.

Does this mean that employer's may monitor its employees' use of its computer equipment to guard against such misuse?

The Electronic Communications Privacy Act of 1986 [18 USC 2071], prohibits the unlawful intentional interception of e-mail among other forms of protected communication. However, there are a few exceptions to this general rule.

Among the exceptions relevant to the monitoring of e-mail by employers is that the employee may give "consent" to such monitoring. This exception may encourage employers to attempt to negotiate the inclusion of a "consent to monitoring e-mail" in a collective bargaining agreement.

In DuPont and Co., 301 NLRB 12, the National Relations Board ruled that the employer has a duty to bargain with the union over the monitoring of employee e-mails.