To sue a union that is an unincorporated association, the complaint must allege that each member of the union authorized or ratified the conduct giving rise to the alleged misconduct

To sue a union that is an unincorporated association, the complaint must allege that each member of the union authorized or ratified the conduct giving rise to the alleged misconduct
Lahendro v New York State United Teachers Assn.. 2011 NY Slip Op 07343, Appellate Division, Third Department

The Brushton-Moira Central School District served disciplinary charges against a longtime tenured educator, Michael F. Lahendro, seeking his termination. Contending that the allegations set out in the charges were false, Lahendro met with an attorney and a labor relations specialist from New York State United Teachers Association and executed a demand for a disciplinary hearing in accordance with Education Law §3020-a [2][c].

NYSUT’s representatives assumed responsibility to file the demand with the district. but it was filed one day late and the district refused to accept it.

Lahendro did not seek permission to file a late demand but instead entered into a settlement agreement with the school district in which, among other things, he agreed to retire. Lahendro and his wife then commenced a lawsuit against NYSUT alleging it had breached its the duty of fair representation and negligence [Lahendro I].

NYSUT filed a motion to dismiss the action, which was denied by Supreme Court and it appealed the lower court’s ruling.

The Appellate Division first considered NYSUT’s argument that Lahendro failed to properly plead a breach of the duty of fair representation because where, as here, the union is an unincorporated association, the complaint must allege that each member of the union authorized or ratified the conduct giving rise to the breach.

Noting that the Court of Appeals held in Martin v Curran, 303 NY 276, that a voluntary unincorporated association "has no existence independent of its members" and that "for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven" it vacated the lower courts ruling.

Although certain exceptions have been carved out from this general rule, the court said that one commentator has observed that, “although a claim of breach of the duty of fair representation may be brought either in court or before an appropriate agency (such as the Public Employment Relations Board), the reality in light of Martin is that most such claims must be brought before an agency to survive early dismissal, citing Rubenstein, Union Immunity From Suit in New York, 2 NYU Journal of Law & Business 641.

Finding that the Lahendros had alleged NYSUT and the Brushton-Moira Teachers Association were unincorporated associations but had not alleged, and acknowledged that they could prove, that all of the individual members of these defendants authorized or ratified the complained of conduct, the Appellate Division ruled that NYSUT motion to dismiss should have been granted.

As to the Lahendro’s second cause of action, the Court held that they have "no cause of action against [Lahendro's] union . . . for negligence arising out of the performance of duties assumed under the collective bargaining agreement; [their] sole remedy is an action for breach of fair representation" and this cause of action cannot survive NYSUT’s  motion to dismiss.

NYSUT had also filed a motion in Supreme Court to reargue its rejected motion to dismiss which was granted by the lower court. The Lahendros appealed that ruling [Lahendro II] and the Appellate Division, in a separate action [see 2011 NY Slip Op 07345], held that "individual defendants cannot be held liable for acts committed in their capacity as union representatives," citing Duane Reade, Inc. v Local 333 Retail, Wholesale, Department Store Union, 17 AD3d 277. It sustained the Supreme Court’s dismissal of the action against those defendants in their individual capacity and dismissed the Lahendros’ appeal.

Alleged malpractice was peripherally addressed in Lahendro II in that the court cited Mamorella v Derkasch, 276 AD2d 152. In Mamorella the Appellate Division considered a claim that a union provided attorney was guilty of malpractice.

Lucille Mamorella asked the Appellate Division  "to reject as against public policy the well-established rule that an attorney who performs services for and on behalf of a union may not be held liable in malpractice to individual union members where the services at issue constitute a part of the collective bargaining process."

The Appellate Division "declined to do so." The court said that "sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process." The court cited Peterson v Kennedy, 771 F2d 1244, in support of its ruling.

A different standard, however, is applied in situations where the alleged malpractice action is brought by an individual against his or her personal “private attorney” rather than a "union provided attorney” as demonstrated in Tinelli v Redl, 199 F.3d 603; Affd. 121 S.Ct. 47.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of "misconduct and incompetence." The appointing authority adopted the findings of the hearing officer and imposed the recommended penalty: termination.

Tinelli appealed. According to the decision, Redl failed to take any "further action ... after the initial filing of the petition for Tinelli's appeal" in New York State Supreme Court. As a result, six months later Tinelli's "appeal expired." Tinelli sued Redl, contending that the attorney's (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl's handling the appeal constituted malpractice depended on whether or not Tinelli's appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that "Tinelli's appeal would not have succeeded because the hearing officer's findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli's termination under the circumstances." The court dismissed Tinelli's claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

Laherndro I is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07343.htm

Laherndro II is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07345.htm

Qualified immunity of public officials in litigation

Qualified immunity of public officials in litigation

Sonnleitner v York, et al, 304 F.3d 704

Sometimes public officials are named as respondents in a lawsuit. The Sonnleitner case considers a qualified immunity defense available to such officials in connection with their being sued in either an official capacity, or in a personal capacity, or both.

Harold Sonnleitner served as a supervising nurse at the Winnebago Mental Health Institute, a state-run psychiatric facility in Wisconsin. Sonnleitner was charged with a number of work rule infractions. A predisciplinary hearing was held. Shortly thereafter Sonnleitner was demoted to a non-supervisory position.

Sonnleitner appealed to the Wisconsin Personnel Commission. The Commission determined that there was only evidence to support one work rule violation and that a five-day suspension without pay was the appropriate discipline.

The Institute implemented the five-day suspension without pay but did not reinstate Sonnleitner to his former supervisory position. Sonnleitner commenced an action in State Court in Wisconsin (1) to enforce the Commission's ruling and (2) for damages pursuant to 42 USC 1983, alleging the violation of his procedural due process rights under the Fourteenth Amendment. The State had the lawsuit transferred to federal court.

When the federal district court granted the State's motion for summary judgment, Sonnleitner appealed.

One of the issues addressed by the Circuit Court of Appeals was the defense of "qualified immunity" raised by the individually named defendants, Stanley York and the other administrators, with respect to their being sued in their "personal capacity."

The court said that there were two tests that had to be met to determine whether or not the individual was entitled to claim qualified immunity with respect to being sued in a personal capacity.

The first test: did the official violate the individual's right to administrative due process.

The second test: did the plaintiff individual clearly establish his or her right to due process at the time of the alleged violation.

As Sonnleitner could not satisfy his burden of establishing the existence of any clearly established constitutional right to due process -- Sonnleitner conceded that he had not satisfied the procedural requirement to maintain his action in State Court -- the Circuit Court concluded that the individually named State defendants were entitled to qualified immunity with respect to their being sued in a personal capacity.

A second immunity issue presented for review by the Circuit Court: Could Sonnleitner maintain his lawsuit against the individually named defendants in their official capacity in order to obtain a federal court order to compel his reinstatement to his former supervisory position?

The court said that the Eleventh Amendment provides that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State.

This means, said the Circuit Court, the Eleventh Amendment generally bars federal courts from taking jurisdiction over lawsuits against state officials acting in their official capacities when the state is the real party at interest.

The decision notes that there are three specific exceptions to a state's Eleventh Amendment immunity to lawsuits in federal court:

1. When Congress has abrogated the state's immunity from suit through an unequivocal expression of its intent to do so through a valid exercise of its legislative power;

2. When a state "has properly waived its immunity and consented to suit in federal court"; and

3. When the plaintiff "seek[s] prospective equitable relief for ongoing violations of federal law."

Sonnleitner's complaint, said the court, asserts that the defendants, in their official capacity, are "depriving him of his right to return to a position as supervisor."

Concluding that Sonnleitner failed to respond to the State's arguments concerning the first two exceptions to state immunity, the court said it had no basis to conclude that either Congress has abrogated Wisconsin's Eleventh Amendment immunity or that Wisconsin has authorized this lawsuit through an act of waiver or consent.*

Turning to the third exception to a state's Eleventh Amendment immunity, the court said that Sonnleitner's complaint and reply brief arguably made allegations that are at least consistent with meeting this test. However, the Circuit Court decided that the complaint did not allege an ongoing violation of federal law or sought any relief properly characterized as prospective.

In summary, the court concluded that Sonnleitner's Fourteenth Amendment right to procedural due process might have been violated when he was demoted to a staff level nursing position.

The Circuit Court said that the resolution of this question ultimately hinges on material facts that are not in the record. However, it ruled that a remand for a trial on the merits was unnecessary in this instance.

Why not remand the case back to the district court for a trial? Because, said the court, the individual defendants being sued in their official capacity are entitled to qualified immunity since Sonnleitner did not satisfy his burden of demonstrating the existence of a clearly established constitutional right to a pre-demotion hearing with respect to all of the relevant charges.

Further, the court ruled that Sonnleitner's official capacity claims also failed because he did not alleged any ongoing violation of federal law.

The decision also reports that Institute officials rejected Sonnleitner's request to become a Unit Director, "reasoning that his pre-demotion position of Nurse Manager no longer existed and that it had no obligation to place him in another position." It said that it would be "full compliance with the Commission order by permitting Sonnleitner to remain in his current position at the Institute, where he was actually paid more money than in his former job." Sonnleitner had shielded himself from the adverse economic effect of his demotion by requesting a transfer to the night shift, where he earned a pay premium.

* The court said it "flatly" refused to undertake its own examination of Wisconsin and federal law to see if such a basis exists as it is not the court's responsibility to research and construct the parties' arguments.

Public accountability exception to the FLSA for “ghost employment”

Public accountability exception to the FLSA for “ghost employment”

Demos v City of Indianapolis, CA7, 302 F3d 698.

Alan L. Demos, an administrative employee, and Ronald Graham, a city executive, sued the City of Indianapolis claiming they were denied overtime pay and vacation time credits to which they alleged they were entitled under the Fair Labor Standards Act, 29 USC 201-219.

Demos and Graham contended that because the City's policy required that their pay be docked if they failed to work an eight-hour day, they were not salaried employees within the meaning of the Act. The district court rejected their argument, and the Circuit Court, Seventh Circuit, affirmed the lower court's ruling.

The reason given by the Circuit Court for holding that both Demos and Graham were not entitled to overtime compensation under the FLSA: they were excluded from the Act's coverage under to the Department of Labor's public accountability exception to its no docking of pay rule.

Persons who are employed "in a bona fide executive, administrative, or professional capacity" are exempt from the Act's overtime provisions. However, Department of Labor rules provided that if an employee's salary is docked for partial day absences, it is presumed that the employee is not paid on a salary basis and thus covered by FLSA.

Because some public jurisdictions are required by law to make payroll deductions in the event the individual is absent from work without charge to leave credits, the Department of Labor developed a regulation -- referred to as the public-accountability rule -- allowing government employers to dock an executive, administrative or professional employees salary if the docking is pursuant to a "system of public accountability." The regulations provides that:

An employee of a public agency . . . shall not be disqualified from exemption . . . on the basis that such employee is paid according to a pay system established by statute, ordinance, or regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness for not less than one workday when accrued leave is not used by an employee because accrued leave has been exhausted; or the employee chooses to use leave without pay.

Here the City cited Indiana's "Ghost Employment Statute,"* contending that the statute makes it publicly accountable for preventing non-working employees who do not request, or who are denied, leave time from receiving compensation.

In addition, the City argued that its Code of Ethics prevents it from paying employees for not working during a regularly scheduled workday, which, said the court, "is evidence of its public accountability."

* Indiana Code 35-44-2-4 provides that "a person employed by a governmental entity who, knowing that he has not been assigned any duties to perform for the entity, accepts property from the entity commits ghost employment, a Class D felony."

Sexual harassment and discrimination

Sexual harassment and discrimination

Robertson v Nassau County, NYS Supreme Court, Justice Lally [Not selected for publication in the Official Reports]

An individual alleges that he or she was the victim of unlawful discrimination at work. The Robertson decision sets out the basic requirements that the employee must satisfy in order to successfully sue an employer for alleged sex discrimination or harassment.

Citing the Court of Appeals' ruling in Totem Taxi v State Human Rights Appeal Board, 65 NY2d 300, Justice Lally said that although Section 296 of the Executive Law provides that it is an unlawful discriminatory practice for an employer, because of the sex of any individual, to discriminate against such individual in compensation or in terms, conditions or privileges of employment, the "employer cannot be held liable for an employee's discriminatory acts unless the employer becomes a party to it by encouraging, condoning, or approving it".

Robertson, a Nassau County Civilian Communications Operator was relived of her radio dispatch duties. She then complained that such action constituted discrimination against her solely because of her gender and that she has been forced to work in a hostile work environment where she has suffered sexual harassment.

As examples of employer discrimination and harassment because of her gender, Robertson alleged that she had been:

1. Falsely accused of incompetence;

2. Improperly charged with lacking required certifications;

3. Given assignments in contravention of her seniority;

4. Denied training and overtime opportunities;

5. Verbally abused by her superior, Sergeant O'Shea;

6. Subjected to surveillance during her breaks;

7. Had her work station relocated against her wishes; and

8. Had not been allowed to have coffee at her workstation.

Nassau asked the court to dismiss Robertson's complaint, contending that there was no evidence any of the events described by Robertson "had anything to do with [her] gender" nor was there any evidence indicating any hostile work environment or sexual harassment.

Justice Lally pointed out that in order to establish a claim of gender-based discrimination, Robertson had to show that she was discriminated against with regard to compensation, terms, conditions or privileges of employment based upon her gender under circumstances that give rise to an inference of unlawful discrimination. Here, however, the court said that "[t]here is no evidence to support [Robertson's] complaint that she was mistreated on account of her gender."

Further, Justice Lally commented that even assuming that Robertson's allegations were sufficient to establish a prima facie case of gender bias, Nassau County had set out a valid reason for relieving Robertson of her radio dispatch duties.

According to the ruling, the County's action was justified because Robertson had withheld important information from supervisors "by both personally judging its importance and because she viewed some of her supervisors as inexperienced and not worthy of being kept informed."

Further, said the court, although Robertson complained that she was discriminated against because of her gender "in that she was monitored, watched, followed and yelled at" by Sergeant O'Shea, she failed to show that his conduct towards her was related to her gender.

Justice Lilly noted that "Sergeant O'Shea monitored all operators' calls and that, as a supervisor, it was his responsibility to do so." As to Robertson's complaint that she was prevented from having food and/or drink at her workstation, the Court said that this reflected Police Department policy rather than a limitation uniquely applied to her. Commenting on Robertson's sexually hostile work environment claim, the court said that to survive summary judgment, Robertson had to show that:

1. She is a member of a protected class;

2. The conduct or words upon which her claim of sexual harassment is predicated were unwelcome;

3. The conduct or words were promoted simply because of her gender;

4. The conduct or words created a hostile work environment which affected term, condition or privilege of her employment; and

5. Nassau County is vicariously liable for such conduct because it condoned such conduct by its supervisory employees.

Again, said the court, Robertson failed to meet this burden, concluding that "[t]here is no evidence at all that the alleged mistreatment [of Robertson] by Sergeant O'Shea, even if characterized as hostile, was prompted by [Robertson's] sex and therefore, the conduct cannot be characterized as discriminatory under the law."

Lawyers and blogging

Lawyers and blogging

Source: Washington Post

Attorneys and law firms that maintain blogs might find the article by Catherine Ho published in The Washington Post on October 9, 2011, of interest. Ms.Ho's lead sentence: “Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.”.

The item is posted on the Internet at:

http://www.washingtonpost.com/business/capitalbusiness/virginia-state-bars-crackdown-on-lawyers-blog-raises-questions/2011/10/03/gIQAYsufYL_story.html

Why the Law Is So Perverse by Professor Leo Katz -- a NYPPL book review

Why the Law Is So Perverse by Professor Leo Katz -- a NYPPL book review

Published by the Chicago University Press - http://press.uchicago.edu/ucp/books/book/chicago/W/bo11518130.html

From time to time a ruling is handed down by a judicial or a quasi-judicial panel that may be characterized as a decision in search of an opinion because of the diverse views expressed by the judges explaining their rationale for their conclusions. Indeed, it may be necessary to create a Venn diagram -- a schematic diagram used in logic theory to depict collections of sets and represent their relationships -- to understand what some might term the paradoxes in the decision.

In his most recent book, Why the Law Is So Perverse, Professor Leo Katz, Frank Carano Professor of Law at the University of Pennsylvania Law School, considers a variety of interesting approaches to determining “the law of the case” or perhaps more accurately, what are the elements in play that result in “the law of the case.”

The titles of a number of the book's chapters such as “Why Does the Law Spurn Win-Win Transactions?” and "Things We Can’t Consent To, Though No One Knows Why", illustrate the types of conundrums or paradoxes in the law that Professor Katz addresses. Other chapters discuss such issues as “Why Is the Law So Full of Loopholes?” and “Why Is the Law So Either/Or?”

Using examples involving a variety of areas of the law including criminal law, election law and property law, leavened by ethical and societal considerations, Professor Katz sets out intriguing examples of “what is” and suggests alternative views as to “what could be” or, possibly, “what should be.”

The first line in Professor Katz’s introduction to this work sets the tone when he states that There are ideas that are preposterous on their face, and yet one is hard pressed to say why. This book is about such ideas.

The following excerpt provides a taste of what the reader will encounter in exploring this volume:

The criminal code contains a long list of specific offenses (murder, theft, rape, etc.) as well as a separate list of defenses (self-defense, insanity, etc.). This kind of division into offenses and defenses is characteristic of most areas of law. Usually the prosecutor, or the plaintiff, has the burden of proving that the defendant is guilty of the offense, and it then falls to the defendant to show that he was acting in self-defense or out of insanity or whatever. Now, one might wonder why things are set up that way. One might for instance define murder not as it currently is, as an intentional killing, but as an intentional killing other than in self-defense or while insane. One might then require the prosecution to make the case not merely that the defendant killed intentionally but that he was not acting in self-defense and that he was sane.

Professor Katz explains: This, then, is the groove into which I will be stepping, the perspective from which I will be proceeding—legal doctrines thought of as instances of multicriterial decision making.

This concise work is thought provoking and provides the reader with insights that both the law professional and the interested layperson will find illuminating and, perhaps, trigger considering approaches to the legal issue at hand that an advocate could use in analyzing and then arguing, or defending, his or her position or rebutting his or her opponent's arguments.

In essence, Professor Katz challenges the reader to think about what is often accepted as “black letter law” and ask him or herself to identify the true issues and the ethical considerations involved and consider the existence of an alternative theory that demands evaluation. In other words, Professor Katz invites his readers to think outside the box.

Why the Law Is So Perverse, 250 pages, may be ordered from the University of Chicago Press, http://press.uchicago.edu/ucp/books/book/chicago/W/bo11518130.html and is available as a hard cover book or as an e-book.

Reviewed by Harvey Randall
Editor and General Counsel, NYPPL

Termination of an individual serving a disciplinary probationary period controlled by the terms of the stipulation providing for the disciplinary probation

Termination of an individual serving a disciplinary probationary period controlled by the terms of the stipulation providing for the disciplinary probation

Matter of Unified Court Sys. of the State of N.Y. v New York State Ct. Clerks Assoc., 2006 NY Slip Op 30641(U), [Not selected for publication in the Official Reports]

The issue before Judge Lippmann: may a union bring a contract grievance over the alleged breach of a stipulation setting a disciplinary action entered into by the parties after negotiations based on the union's collective bargaining agreement as distinguished from an alleged breach of the collective bargaining agreement itself is to be made by this court or by the arbitrator.

The stipulation provided for a disciplinary probation and thus the employee could be terminated without a hearing or any of the other procedural safeguards afforded by Article 24 of his collective bargaining agreement if he breached any of the limitations set out in the stipulation.

When the employee was summarily terminated without notice without specifying which of the several limitations he had breached, the union filed a contract grievance contending that the summary termination without notice "plainly breached both the spirit and the express terms of the stipulation,” claiming that the employee “had not violated the terms of the stipulation. The grievance was denied and the union demanded arbitration.

The Unified Court System filed an Article 75 petition seeking to stay arbitration, arguing that “under applicable law and court rules it had every right to fire [the employee], a probationary employee, as it did, and that the underlying grievance was not a contract dispute but rather a disciplinary matter affecting only one union member, whose only proper avenue of redress was to bring an Article 78 proceeding.”

Judge Lippmann said that it was well established that generally, "[absent a statute or rule to the contrary, a probationary employee may be discharged without a hearing and without a statement of reasons," provided there was no showing that the termination was for a constitutionally impermissible purpose, in bad faith, or in violation of law. [see Reynolds v. Crossou, 183 AD2d 48.]

However, said the court, although the dubbed a probationary employee, here the individual is not a probationer in this class nor subject to those legal tenets. Rather his status as a probationary employee stems solely from the stipulation, rather than from the normal course of the hiring process, thereby limiting the Court System's right to terminate him.

After exploring the several arguments made by the parties, Judge Lippmann denied the Unified Court System’s application for a stay of arbitration and granted the union’s cross-motion seeking arbitration as provided for in the collective bargaining agreement.

Significantly, UCS did not identify the reason or reasons leading to summarily terminate the individual. Judge Lippmann said that to the extent that the employee “could have brought an Article 78 proceeding challenging the factual determination “ underlying his termination, such an action was “an impossibility since … at no time was [the individual] formally notified of the reason for his termination.

The seminal case addressing disciplinary probation issue presented to Judge Lippmann is Taylor v Cass, 122 A.D.2d 885, 505 NYS2d 929. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after the court found that he was improperly dismissed while serving a disciplinary probation.

The terms of his probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, however, was subsequently summarily terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the earlier settlement: -- intoxication on the job.

Designation of employees as managerial

Designation of employees as managerial

PEF and State of New York, 35 PERB 4047

PERB's Director of Public Employment Practices and Representation Monte Klien ruled that incumbent of the position must participate in the policy making process on a regular basis in contrast to merely serving as a high level supervisor in order for the individual to be designated managerial.*

The Public Employees Federation [PEF] objected to having the incumbent of the position of Forester 4 in the State Department of Environmental Conservation designated managerial and thereby excluded from the State's Professional, Scientific and Technical Unit represented by PEF.

Although the incumbent, Bruce Williamson, performed high-level supervisor duties and made recommendations that were used in formulating policy, this was not found sufficient to justify designating him managerial within the meaning of the Taylor Law. Kline pointed out that PERB has consistently followed the Legislature's caution that "employees be excluded from bargaining units only upon a very clear exercise of managerial responsibilities" and it is the employer's burden to present evidence "which compels such exclusion."

Kline said that "[w]hile an employee need not be the ultimate decision maker to be designated a policy formulator, the employee must participate with regularity in the process by which policy making decisions are made." The Department of Environmental Conservation was unable to demonstrate this factor to Kline's satisfaction and he ruled that the Forester 4 position encumbered by Williamson should be included in the unit represented by PEF.

* Although there it a tendency to refer to “managerial” or “confidential” positions, it is the incumbent of the position, rather than the position itself, that is designated “managerial” or “confidential”. For example, Section 201.7(a) of the Civil Service Law provides, in pertinent part, as follows: “Employees may be designated as managerial only if they are persons ... who ….” See, also, paragraphs (e), (f) and (g) of §201.7 that also define “managerial” in terms of incumbents of certain positions in contrast to designating the positions themselves as “managerial.”

Creating a negotiating unit

Creating a negotiating unit

Teamsters Local 264 and Town of Cheektowaga, 35 PERB 4020

In considering the petition filed by Local 264 seeking represent a proposed collective bargaining unit consisting of part-time court officers employed by the Town of Cheektowaga, PERB Administrative Law Judge [ALJ] Lynn Fitzgerald ruled that the part-time court officers should be included in the bargaining unit represented by the Cheektowaga Employees Association [CEA].

Local 264 had argued that the eight part-time court officers did not share "a community of interest" with the employees in the unit represented by CEA. It contended that “because CEA has no part-time employees, there is an inherent conflict between court officers and CEA employees, who are all full-time employees with benefits," and the part-time court officers who do not receive such benefits.

The ALJ said that PERB "has long held that, in the creation of bargaining units, it is not sufficient that the petitioned for unit is appropriate; instead, the question is whether the unit is the `most appropriate,' and, further, whether it provides for the creation of the largest possible unit which permits for effective negotiations."

What is the "most appropriate" unit? Citing Hewlett-Woodmere Union Free School District, 24 PERB 4043, Judge Fitzgerald said that:

It is well settled that the "most appropriate unit" is the largest one permitting for effective and meaningful negotiations; only diverse employee interests, either actual or potential, warrant the establishment of smaller units.

Significantly, the ALJ noted that the court officers' duties did not entail their being engaged in any law enforcement responsibilities that might otherwise justify their placement in a separate or different negotiating unit.

In County of Erie and Eric County Sheriff, 29 PERB 3031, PERB held that there is a unique community of interest among law enforcement personnel who are engaged in the full range of law enforcement activities such as the prevention and detection of crime and the enforcement of the general criminal law of the State.

Workfare with a public agency not public employment

Workfare with a public agency not public employment

McGhee v City of New York, NYS Supreme Court, Ia Part 5, Justice Stallman, 2002 N.Y. Slip Op. 50332(U), [Not selected for publication in the Official Reports]

According to the ruling by Justice Stallman in the McGhee case, individuals receiving public welfare benefits while working for the City of New York under a Work Experience Program [Workfare] are not employees for the purposes of bringing a lawsuit under the State's Human Rights Law.

McGhee alleged that she had been sexually harassed during a Workfare assignment. The City, contending that Workfare participants are not employees, moved to dismiss McGhee's complaint.*

Justice Stallman dismissed McGhee's complaint. The court decided that under the facts of this case, McGhee's Workfare participation did not create any employment relationship between the participants and the City.

The court noted that "in a different context," the Court of Appeals concluded that Workfare participants were not "employees," citing Brukhman v Giuliani, 94 NY2d 387.

In Brukhman, the Court of Appeals ruled that the prevailing wage provision of the State Constitution -- Article I, Section 17 -- does not apply to Workfare participants because participation in the Workfare program is the statutory "condition of continued receipt of public assistance grants."

Section 330.5 of the Social Services Law specifically list certain limited circumstances under which Workfare participants are deemed "public employees" and categories of "work activities" under which public assistance recipients are to be given the benefits and protections of similarly-situated employees. None applied to McGhee.

However, McGhee did have a possible remedy available to her. Justice Stallman pointed out that she "could have filed a grievance concerning the alleged sexual harassment with the New York City Human Resources Administration, the local service district under the Social Services Law" and if dissatisfied with its ruling, she could have "appealed to the State for a fair hearing."

* A federal court had previously dismissed McGhee's Title VII harassment claim after finding that she was not an employee within the meaning of the Personal Responsibility and Work Opportunity Reconciliation Act. This Act mandated adoption of "Workfare" programs by public entities.