Negotiating a disciplinary procedure not a mandatory subject of collective bargaining

Negotiating a disciplinary procedure not a mandatory subject of collective bargaining
City of Mount Vernon v. Cuevas, 289 A.D.2d 674 [Leave to appeal denied, 97 N.Y.2^nd 613]

In considering the appeal of the City of Mt. Vernon, the Appellate Division ruled that under certain circumstances, negotiating a contract disciplinary procedure is not a mandatory subject of collective bargaining under the Taylor Law.

Mt. Vernon had appealed a PERB determination that held that its disciplinary procedures were a mandatory subject of collective bargaining in response to the City's claim that its police officers union had submitted a number of nonmandatory or prohibited subjects of collective bargaining for compulsory interest arbitration, one of which involved disciplinary procedures.

The City's argument: Its 1922 City Charter established disciplinary procedures for its police officers and the continuation of such procedures is protected by Civil Service Law Section 76(4). Accordingly, the City said could not be forced to negotiate its disciplinary procedure on the theory that it was a term or condition of employment.

Supreme Court agreed, determining that PERB's decision was "irrational, unreasonable and legally impermissible" and granted the City's motion.

PERB appealed contending that because Section 76(4) was passed years before the Taylor Law, it “could not reasonably be read to reflect ‘any intent on the part of the Legislature to exclude or preclude bargaining as to discipline’”.

Section 76(4), in pertinent part, provides:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.

The Appellate Division said that although the Taylor Law requires good faith bargaining concerning all terms and conditions of employment which have been held to be a mandatory subject of collective bargaining, here the police officer discipline procedures contained in the City's Charter enacted in 1922 are specifically protected from repeal or modification by Section 76(4).

Affirming the lower court's ruling, the Appellate Division held that under these circumstances, the disciplinary procedures applicable to Mt. Vernon's police officers are not mandatory subjects of negotiation. 

Reclassification of positions

Reclassification of positions
Botti v Lippman, 290 A.D.2d 923

Nicole Botti and other "Court Attorneys" employed by County Judges handling matters in several different county-level courts (referred to as "multi-bench judges") asked to be reclassified to the higher-grade title "Law Clerk to Judge." When the Court's Chief Administrative Judge, Jonathan Lippman, rejected their application for reclassification, they sued. The Appellate Division sustained Judge Lippman's decision. It said that:

Given the broad classification and allocation authority of the Chief Administrator of the Courts, his determinations concerning the classification of positions "will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."

The court said that Botti and his co-plaintiffs work "in Family ... County and Surrogate's Courts in counties with populations less than 400,000 -- exactly the standard for classifying the title Court Attorney.'"

Botti contended that the fact that they served "multi-bench judges who also handle matters in other county-level courts" justified their reclassification to Law Clerk to Judge. The Appellate Division rejected Botti's argument, finding that in rebuffing their reclassification applications Judge Lippman correctly interpreted the term "full-time" referred to in the “Law Clerk to Judge” job description to mean those judges whose work at the county-level is "exclusively" on matters within the jurisdiction of County Court. This, said the court excluded multibench judges, as they did not serve in such a capacity "full-time."

As there were differences in the nature of the work corresponding to these judicial duties in classifying legal assistants to multibench judges differently from those assisting judges in performing exclusively County Court work, the Appellate Division ruled that "it cannot be said that respondents acted arbitrarily or without any rational basis."

In addition, the court said that classifying Botti's position as Court Attorney "complies with the statutory mandate that nonjudicial employees be classified according to the duties required to be performed and, in addition, reflects the recognized distinctions between the duties of a judge who sits solely in County Court and those of a multi-bench judge."

The Appellate Division also rejected Botti's claim that the Court Attorneys were entitled to additional per diem income whenever they perform work on Supreme Court matters since the Court Attorney job description “expressly contemplates the employees' performance of duties for judges who are designated as "Acting Justices of the Supreme Court for one full term or less." In other words, the court did not consider Court Attorneys performing "Supreme Court" duties to constitute out-of-title work where such work was intermittent and was performed for a term or less.

Reconsideration for promotion does not result in eligibility for retroactive pay

Reconsideration for promotion and then being promoted does not result in eligibility for retroactive pay
Szipcek v Safir, 291 A.D.2d 269

New York City police officer Mitchell Szipcek protested his being "passed over" for promotion to sergeant. He was successful in having his advancement reconsidered and was subsequently promoted to sergeant.

Szipcek then sued, claiming that since he was actually promoted after being reconsidered, he was entitled to” make-whole relief" in the form of back pay and retroactive seniority.

The Appellate Division, First Department disagreed. It ruled that in the event of a defect in the Civil Service appointment or promotion process, the remedy is not retroactive appointment or promotion with an award of back pay but merely reconsideration for appointment or promotion after the defect in the process has been corrected. The court cited Andriola v Ortiz, 82 NY2d 320, in support of its ruling. 

Layoff, Taylor Law agreements and the Doctrine of Unintended Consequences

Layoff, Taylor Law agreements and the Doctrine of Unintended Consequences

A NYPPL review

The Civil Service Employees Association [CSEA] has summarized the new “no layoff” Article set out in the several collective bargaining agreements between it and the State of New York for the period 2011-2016 as follows*:

No Layoff –

1. For the Fiscal Years 2011-12 and 2012-13, employees represented by CSEA shall be protected from layoffs resulting from the facts and circumstances that gave rise to the present need for $450 million in workforce savings.

2. For the term of the agreement, only material or unanticipated changes in the State’s fiscal circumstances, financial plan, or revenue will result in potential layoffs.

3. Workforce reductions due to the closure or restructuring of facilities, as authorized by legislation, and SAGE determinations are excluded from these limitations.

This “no layoff provision,” however, may fall victim to the Doctrine of Unintended Consequences as the result of the failure of the Public Employees Federation [PEF] to ratify the proposed collective bargaining agreement between it and the State.

In a press release dated September 27, 2011, Governor Cuomo stated that "The members of the Public Employee Federation (PEF) have made their decision on a contract that would have protected them against the state needing to lay off their workers in order to achieve the required workforce savings passed as part of this year's budget.”

However, certain employees in the negotiating unit represented by PEF may be insulated from layoff in the event the court’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, is held controlling. 

In Plattsburgh the Appellate Division ruled that seniority for the purposes of layoff can neither be diminished nor impaired by the terms of collective bargaining agreements.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service. For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A. This was the problem in the Plattsburgh case. The City laid off A rather than another worker, B. While A had been employed by the City for a longer period than B, B had received his permanent appointment before A was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Appellate Division ruled that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

How could applying these decisions have an impact on State employees in the collective bargaining units represented by CSEA?

Should a State employee represented by PEF to be laid off because he or she is the least senior permanent employee in the layoff unit have layoff, displacement or retreat rights that would result in the layoff of a State employee in one of the collective bargaining units represented by CSEA, the courts may well rule that the PEF unit employee has layoff rights superior to those enjoyed by the CSEA employee notwithstanding the “no layoff” provision set out in the CSEA-State collective bargaining agreement.

Accordingly, in the event the PEF individual is found to have superior rights to continued employment pursuant to Civil Service Law §80(1), the resulting layoff of the CSEA individual presumably constitutes a violation of the CSEA-State collective bargaining agreement. 

In other words, if a collective bargaining agreement cannot diminish or impair the layoff rights of an individual in the relevant collective bargaining unit, it seems unlikely that the courts would rule that the layoff provisions in such a collective bargaining agreement are controlling with respect to employees in other collective bargaining units thereby defeating the statutory layoff rights of individuals not subject to the provisions of that agreement.

* The full text of the summary of the Agreement is posted on the Internet at

http://www.csealocal1000.org/images/janicem/final_contract_side_by_side.pdf

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Statement from director of state operations Howard Glaser on PEF vote rejecting the negotiated agreement between the State and the Public Employees Federation [PEF]

Statement from director of state operations Howard Glaser on PEF vote rejecting the negotiated agreement between the State and the Public Employees Federation [PEF]

In a press release issued by the Executive Chamber on September 28, 2011, Director of State Operations Howard Glaser said:

"Today's vote [in which the membership rejected the proposed negotiated agreement] represents a failure by PEF's leadership to effectively communicate the benefits of the contract to its members as CSEA's leadership did. Layoffs could still be avoided if PEF clearly articulates to its members the benefits of the contract as well as the consequences of rejection and schedules a revote. We spent months working with PEF's leadership and reached an agreement. We now find out that they do not truly represent their membership.

”Members of the Civil Service Employees Association (CSEA), who agreed to a layoff protection as part of their ratified collective bargaining agreement, will not be subject to the approximately 3,500 layoffs that will begin today."

With respect to the ratification process of a proposed Taylor Law contract reflecting the agreements and understanding between the negotiators representing the employer and the employees in the unit, in Matter of Copaigue Union Free School District, 23 PERB 3046, PERB addressed the duty of negotiators to recommend ratification of a proposed agreement and held that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support."

Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges

Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges
Vargo v Safir, App. Div., First Dept., 291 A.D.2d 268

Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer guilty of misconduct, it did find that there was a question as to whether the officer was entitled to back pay.

The court said that it appeared that the officer had been suspended without pay for more than 30 days after he was served with disciplinary charges filed against him.

Civil Service Law Section 75.3-a, in pertinent part, provides that a New York City police officer may be suspended without pay for thirty days pending the determination of disciplinary charges.

Accordingly, said the court, and the Department agreed, it was necessary to remand the matter to the Department to determine if the police officer was entitled to back salary for any period of suspension without pay in excess of 30 days.

CSL Section 75.3-a further provides that if a New York City police officer is found guilty of the charges, the Commissioner "may punish the police officer pursuant to the provisions of Sections 14-115 and 14-123 of the Administrative Code of the City of New York."

The Appellate Division sustained the Commissioner's determination that Vargo was guilty of being the driver of a motor vehicle involved in "a hit-and-run" while off duty and that he used illegal drugs. Under the circumstances, said the court, "[t]he penalty of dismissal does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32, in support of its ruling.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Conflicting medical opinions

Conflicting medical opinions
Buczynski v NYSERS, 291 AD2d 630

Daniel Buczynski, a marketing specialist for the State's Lottery Division, filed an application for disability retirement benefits in January 1997. The basis for his application: anxiety and depression.

Buczynski had stopped working in May 1996 for what was ultimately diagnosed as panic attacks and depression. Buczynski claimed that his condition was the result of increased work and he developed Bell's palsy.

His psychologist said that Buczynski:

1. "continued to exhibit significant cognitive deficits despite several years of therapy and medication" and

2. "was permanently disabled from performing his duties."

The Retirement System's psychiatrist who examined Buczynski in July 1997 "opined that [Buczynski] had suffered a major depression in 1996 that left him unable to perform his duties but that [Buczynski's] condition had improved, that he had no cognitive deficiency and that, with further treatment, he should be able to return to the type of work he had been doing."

In other words, the System's psychiatrist concluded that Buczynski was not permanently disabled from the performance of his duties. Based upon the psychiatrist's opinion, the System denied Buczynski's application for disability retirement.

In response to Buczynski's appeal, the Appellate Division held that there was no merit to Buczynski's claim that the psychiatrist's opinion was insufficient to provide the necessary substantial evidence to support the Comptroller's determination.

The court said that "[w]here, as here, the Retirement System's expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert's opinion generally will not be considered so lacking in foundation or rationality as to preclude the Comptroller from exercising the authority to evaluate conflicting medical opinions...."

Protected union activity

Protected union activity
CSEA Local 861 and Wyoming County, 34 PERB 3042
Local 814 and Town of Poughkeepsie, 34 PERB 3043

Where the employer's reason for dismissing a probationary employee is rejected by PERB as pretextual because the employee was not disciplined for the misconduct claimed as the basis for the dismissal, the inference that the employer retaliated against the employee for pursuing a grievance in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c) has not been rebutted by the employer.

Similarly, in the Town of Poughkeepsie case, PERB held that the Town terminated an employee because of union organizing activities in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c), finding that the reasons given by the Town justifying its action were pretextual because the employee had not been served with disciplinary charges for his alleged misconduct prior to his dismissal.

Depression resulting from being served disciplinary charges not a disability for the purposes of Workers’ Compensation Benefits

Depression resulting from being served disciplinary charges not a disability for the purposes of Workers’ Compensation Benefits
Youngs v Village of Penn Yan, 291 AD2d 852

A Village of Penn Yan police officer was suspended without pay for 30 days effective February 18, 1993. Found guilty of insubordination, the penalty imposed was a reprimand and the officer was directed to report to work effective March 22, 1993.

On the advice of his physician, the police officer did not report for duty on March 22, and subsequently applied for performance of duty disability retirement. His application was approved effective October 2, 1993 and the Retirement System told the Village not to pay any salary to the officer after October 1, 1993.

The officer had filed a claim for workers' compensation benefits, alleging that he was injured on February 18, 1993 and that his injury was depression. His claim was rejected by the Workers' Compensation Board based on its finding that the "major depressive illness was brought about by the ongoing frustration he perceived in his police work." This, said the Board, does not of itself rise to the level of compensability. The Board also considered other factors such as "the trauma of the arrest of [the police officer's] brother [and] the disciplinary action taken on February 17, 1993...."

The Board found that the officer had not sustain an "injury arising out of and in the course of the employment" within the meaning of Workers' Compensation Law Section 10[1] because the term injury "shall not include an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action ... taken in good faith by the employer."

The police officer next sued the Village, seeking damages in the amount of $25,000, his unpaid wages from March 18, 1993 through October 1, 1993, together with his medical expenses since March 18, 1993. He claimed that the Village actions in not paying his wages and medical expenses during this period violated Section 207-c of the General Municipal Law [GML]. A State Supreme Court justice determined that the officer was not entitled to GML Section 207-c benefits and the Appellate Division, Fourth Department, affirmed the lower court's ruling.

The Appellate Division explained its decision as follows:

1. A police officer is entitled to GML Section 207-c wages and benefits if he "is injured in the performance of his duties or ... is taken sick as a result of the performance of his duties."

2. A determination by the Workers' Compensation Board that an injury is work-related does not, "by operation of collateral estoppel, automatically entitle an injured employee to GML Section 207-c benefits," citing Balcerak v County of Nassau, 94 NY2d 253.

3. Conversely, the fact that the Board found that the officer did not sustain an injury in the course of employment is not dispositive of the issue concerning his entitlement to GML Section 207-c benefits.

The court, however, commented that the findings of the Board are relevant, particularly where, as here, they are the only evidence in the record concerning the nature of plaintiff's injury.

The frustration that the officer experienced at work and the disciplinary action brought against him involved a dispute that he had with a superior officer, and did not relate to the actual performance of his duties as a police officer. According, ruled the court, the injury sustained by the police officer is beyond the scope of GML Section 207-c.

On another issue in the case concerned certain "premium pay payments" the Village had provided the officer. The officer complained that he should not be required to reimburse the Village for alleged "overpayments of longevity pay and an Associate Degree stipend for the fiscal year from June 1, 1993 to May 31, 1994." The court responded "[w]e disagree."

The Appellate Division decided that the Village had calculated the officer's longevity payments and his Associate Degree stipend based on its expectation that he would be employed for the entire year. Accordingly the court ruled that they "were subject to adjustment pursuant to the contract between the parties" and thus the officer was entitled to the "premiums" only for the period from June 1, 1993 to October 1, 1993.

Free speech rulings by the federal courts

Free speech rulings by the federal courts
Selected decisions by U.S. Circuit Courts of Appeal

In Swartzwelder v McNeilly, 01-1085, the U.S. Circuit Court of Appeals, Third Circuit, held that a public employer may not require that its employee obtain its prior approval before he or she may give his or her opinion as an expert witness concerning matters of public interest at a trial unless the employer is able to demonstrate that such a requirement is appropriately tailored to the employer's interests.

In deciding Nieves v Board of Education, City of Chicago, 01-3814, the Circuit Court of Appeals, Seventh Circuit, rejected a claim advanced by Rose Nieves, a City of Chicago school employee, that she had been terminated in retaliation for her exercising her right to free speech, holding that there was no evidence connecting the timing of Nieves' termination when her position was abolished as part of a reduction in force to her exercising her First Amendment right to free speech.

According to another ruling by the Seventh Circuit, Thompson v Illinois Department of Professional Regulation, 01-4074, because Mark A. Thompson, a chief administrative law judge, held a policy making position, he could not maintain his law suit based on allegations that his demotion and transfer was in retaliation for his exercising his First Amendment rights to free speech concerning his political beliefs.

Freespeech issues raised by public employees have been considered by the U.S. Supreme Court. Its decisions suggest that the following general guidelines will be applied in addressing such free speech issues:

1. Public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

2. Speech by a public officer or employee that merely addresses a personal concern such as the individual's personal unhappiness working for the public employer or for a particular supervisor, or related to the individuals' particular position, work assignments or working conditions, or the individual's personal disagreement concerning the internal operations of the department or agency, that do not rise to the level of speech concerning a "public interest," does not involve "protected speech" within the meaning of the First Amendment.