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.

Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed

Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed

Matter of Licciardi v City of Rochester, 2011 NY Slip Op 06781, Appellate Division, Fourth Department

The Appellate Division modified a portion of decision that found Mark A. Licciardi guilty of a number of act of alleged misconduct and remanded the matter to the City for “new findings” concerning one of the charges and for its reconsideration of penalty initially imposed, termination.

The court agreed with Licciardi contention that “several of the findings of misconduct rendered following a hearing are not supported by substantial evidence.”

In particular, the Appellate Division ruled that four of the charges of misconduct involved Licciardi's part-time outside employment while on sick leave from his employment as a firefighter. However, said the court, there was no relevant proof as a reasonable mind may accept as adequate to support [the] conclusion that working an additional part-time job while employed by respondent's Fire Department was not permitted or that the part-time job itself was improper or illegal.

The Department had alleged that Licciardi's conduct violated certain Department rules. The court ruled that there was no substantial evidence that Licciardi has conducted himself “in a manner unbecoming[] or prejudicial to the good reputation, the order, or discipline of the . . . Department” nor that he failed to conduct himself “at all times … to the credit of the Department.”

Further, the Appellate Division overturned the Department’s finding that Licciardi had violated the Department's rule that a member shall not " knowingly or intentionally make or cause to be made a false report in connection with the . . . Department or other employees thereof'” when he submitted a letter from his treating physician that stated without qualification that he was unable to work during the time that he was out on sick leave. The court noted that at the hearing Licciardi’s physician testified that Licciardi’s disability was causally related to a work incident at the Department and that, although he was prevented from working as a firefighter, the part-time job outside of the Department was therapeutic.

The court’s conclusion regarding this allegation was that it was not supported by substantial evidence.

Also, said the court, it agreed with Licciardi's contention that he had been found guilty of a charge “based on conduct that was not alleged in the single specification supporting the charge” and thus must be annulled “as outside the scope of the charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06781.htm

Arbitration awards must conform to “strong public policy”

Arbitration awards must conform to “strong public policy”

New York City Transit Authority v Transport Workers Union of America, Court of Appeals, 99 NY2d 1

Most Taylor Law agreements provide that the final step in a grievance procedure is binding arbitration. Article 75 of the Civil Practice Law and Rules is the vehicle used to challenge, or confirm, such an arbitration award. The statutory basis for vacating an arbitration award, however, is very limited. Article 75 provides that a court may vacate the arbitration award only if the court finds that the rights of the challenging party were prejudiced by:

1. Corruption, fraud or misconduct in the procuring of the award; or

2. The partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. The arbitrator award exceeded his or her authority to decide the issue presented or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. A failure to follow the procedure of Article 75 unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

In addition to applying these statutory standards, courts have "judicially" vacated arbitration awards based on a finding that the award violates public policy.

In these consolidated appeals filed by the Transport Workers Union of America, the Court of Appeals explores the concept of the judicial vacating of arbitration awards based on a finding that the award violates public policy and explains the very limited basis upon which a court may vacate an arbitration award on public policy grounds.

The Rodriguez Decision

Rodriguez was a New York City Transit Authority [NYCTA] subway train operator for 16 years. During this 16-year period he had been twice disciplined and suspended for safety rule violations. On November 20, 1998, Rodriguez was involved in his third safety-related incident -- this one involving a collision between his train and another that resulted in a derailment because Rodriguez had not set a hand brake. NYCTA terminated Rodriguez from his position.

Some two weeks before this accident Rodriguez attended a refresher training course which taught the need to set the train's hand brake under the same circumstances.

Rodriguez grieved his dismissal. The arbitration panel, by a two-to-one vote, ruled that the penalty of dismissal was excessive given Rodriguez's long NYCTA service with only two prior "operational violations." Considering the record as a whole and "the parties [sic] progressive disciplinary policies," the arbitration panel reduced Rodriguez's penalty to time served without pay and a demotion for up to six months.

NYCTA filed an Article 75 petition seeking to vacate the award; the union cross-petitioned to confirm the award. Although Supreme Court ruled in the union's favor, the Appellate Division reversed that determination, vacating the panel's award reinstating Rodriguez [see 279 AD2d 474]. The Appellate Division's rationale for its ruling:

NYCTA had a statutory duty to operate the transit system for the safety of the public, and "[r]equiring the NYCTA to reinstate an employee who has been found to be a threat to public safety is contrary to public policy."

The Bright Decision

Leroy Bright was employed by the Manhattan and Bronx Surface Transit Operating Authority [MABSTOA], a NYCTA subsidiary, as a bus driver for over 20 years. On June 11, 1999, his bus struck and injured a pedestrian. He was immediately placed on leave without pay in contemplation of dismissal.

The Transport Workers Union filed a grievance pursuant to the contract disciplinary grievance procedure on Bright's behalf.

Although the arbitrator rejected Bright's exculpatory version of the accident and sustained the charge that he caused a preventable accident, the arbitrator declined to impose the "ultimate penalty" of dismissal. The arbitrator, instead, ordered MABSTOA to reinstate Bright without back pay and stated that this penalty was "to serve as a final warning" that a similar violation would put Bright at risk of termination.

Supreme Court vacated the arbitrator's award insofar as it reduced the sanction from dismissal to a suspension without pay, on the ground that the determination was contrary to the public policy embodied in Public Authorities Law Section 1204(15). The Appellate Division affirmed the lower court's determination [see 280 AD2d 677].

The Court of Appeals reversed both Appellate Division rulings, holding that:

Under our modern arbitration jurisprudence, judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships, and the correlative, expansive power of arbitrators to fashion fair determinations of the parties' rights and remedies.

The decision points out that the limited role of the public policy exception applies only in "cases in which public policy considerations, embodied in statute or decisional law prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." In these two cases, the high court concluded that:

The public policy consideration invoked by the Authorities in the instant cases to vacate the arbitration awards manifestly fails to meet the strict standards for overturning such awards on public policy grounds that have been developed in the case law.

The narrowness of the public policy exception as applied to the arbitration process under collective bargaining agreements, said the court, is designed to ensure that courts will not intervene in this stage of the collective bargaining process in pursuit of their own policy views, or because they simply disagree with the arbitrator's weighing of the policy considerations.

Here, the court noted, the NYCTA and MABSTOA each entered into collective bargaining agreements that required the arbitration of disputes involving employee discipline. Thus statutory powers granted to NYCTA and MABSTOA under the Public Authorities Law may constitute a basis for vacating the awards only if the courts are able to conclude, "without engaging in any extended fact-finding or legal analysis" that the statute "prohibit[s], in an absolute sense, the particular matters to be decided or certain relief being granted."

Clearly the relevant statutes law did not bar NYCTA or MABSTOA from agreeing that the disciplining of employees for safety violations was to be subject to the contract grievance procedure, ultimately to be decided by an arbitrator. Having done so, said the court, an employer could not seek the vacating of an arbitration award by merely relying on a "general statutory authority."

There are some duties or responsibilities so important, however, that the courts will not permit the employer to delegate them or to bargain them away. For example, the courts have held that granting tenure to an educator is a non-delegable responsibility. Arbitrators may not alter duties and responsibilities vested by law in the agency and in such cases arbitration is forbidden, not because there are matters of public interest are involved, but because statutes require that tenure decisions be made by appointing authority.

The Court of Appeals noted that any analysis of whether an arbitration award violates public policy must begin with the actual terms of the award. In both Rodriguez's and Bright's situations, although the arbitration awards directed reinstatement of the employees, neither decision ignored the employer's safety concerns and the seriousness of the breaches of safety rules.

Rather, said the high court, the arbitration awards imposed significant financial sanctions in both cases: in Rodriguez's case, a forfeiture of approximately six weeks' pay and a six-month demotion, while Bright lost over four months' pay and was issued a warning that another offense would place him at risk of termination -- in effect, putting him on probation.

The essence of the ruling by the Court of Appeals appears to be as follows:

As the United States Supreme Court has framed the rationale for upholding the arbitration award when safety was the policy concern in an analogous case, because Public Authorities Law Section 1204(15) would not prohibit the parties to these collective bargaining agreements from having incorporated disciplinary standards providing for severe financial sanctions short of dismissal under the factual circumstances of these cases, the public policy embodied in that section is insufficient to justify overturning arbitration awards achieving the same results.

What could constitute a violation of public policy sufficient to meet the test established by the Court of Appeals? In Ford v CSEA, 94 AD2d 262, the Appellate Division's explanation in vacating an arbitration award on the grounds that it adversely affected a public policy would presumably meet the Court of Appeals' test.

The Ford case involved an employee of the New York State Department of Mental Hygiene who was charged and found guilty of misconduct -- having sexual relations with a patient. The penalty imposed by the arbitrator: a two month suspension without pay based on the arbitrator finding that the patient "consented" to the sexual act and that the physical abuse experienced by the patient was "minimal." In an Article 75 action to vacate the award, the agency head (Ford)asked the court to authorize the agency to dismiss the employee instead.

The Court said that the arbitrator "exceeded his powers and made an irrational award in violation of `a public policy which is beyond waiver' (by the State)." The Court indicated that "Any other result would ... defeat the very purpose for which the Mental Hygiene Law was enacted and the Office of Mental Hygiene created. No collective bargaining agreement to arbitrate can be allowed to destroy the very master it serves."

The Court noted that "mental patients are incapable of `consent' in (this) context ...." Further, the court said that "the determination of `physical abuse' ... cannot be passed off lightly with an adjective such as `minimal.'" It found such a characterization "appalling" and the arbitrator's refusal to impose the penalty of dismissal "plainly irrational".

As to vacating an arbitration award in situations involving the alleged violation of a negotiated agreement on the grounds that the award involved a "non-delegable duty," courts have ruled that the submission of an issue to an arbitrator does not allow the arbitrator to fashion a determination or remedy that violates public policy.

As the Court of Appeals said in Sweet Home CSD v Sweet Home Education Association, 58 NY2d 912, "the transfer or reassignment of teachers under Education Law Section 1711(5)(e) is a nondelegable duty of a school superintendent and a board of education which may not be surrendered through the collective bargaining process." Accordingly, an arbitrator may not provide a remedy involving the transfer or reassignment of educators that impairs that duty.

State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

Estes v Wyoming Department of Transportation, 302 F3d 1200

Connie Estes, a driver's license examiner employed by the Wyoming Department of Transportation [WDOT], sued WDOT in Wyoming State Court. Estes alleged that WDOT violated Title I of the American with Disabilities Act [ADA] and Wyoming's workers' compensation law and, in addition, was in "breach of contract," when it dismissed her from her position.

WDOT deliberately moved Estes' lawsuit to federal court. In so doing, WDOT specifically stated that it was not waiving any of its rights to raise constitutional challenges to the district court's jurisdiction of it. In other words, WDOT attempted to move the case to federal district court while retaining it right to claim sovereign immunity under the Eleventh Amendment in that proceeding.

When WDOT later filed a motion for judgment, arguing the district court lacked jurisdiction because WDOT was entitled to sovereign immunity, it learned that its disclaimers in its earlier effort to "retain it sovereign immunity" notwithstanding its voluntarily moving the case to the federal court were ineffective.*

The Circuit Court, affirming the district court's decision, ruled that WDOT had waived its sovereign immunity with respect to Estes' ADA claim even if the only reason it removed the case to federal court was simply "to challenge the federal court's jurisdiction of the federal forum."

In contrast, the Circuit Court said that its holding with respect to WDOT in Estes' case does not affect the ability of a state to raise sovereign immunity when it is involuntarily brought into federal court and then raises an Eleventh Amendment defense. In the words of the Circuit Court:

It is only when a state removes a federal-law claim from state court to federal court that it "submits its rights for judicial determination" and unequivocally invokes the jurisdiction of the federal courts.

Accordingly, when WDOT removed the Estes case from state court to federal court, it "unambiguously invoked the jurisdiction of the federal court,” and thus waived any claim it might otherwise have to sovereign immunity under the Eleventh Amendment.

* WDOT also argued that Estes failed to exhaust state administrative remedies for her breach-of-contract claim.

Drafting disciplinary charges

Drafting disciplinary charges

Fella v County of Rockland, 297 AD2d 813

How important is it to draft disciplinary charges properly? According to the Appellate Division, even in situations where discipline may be warranted, the failure to word the charges and specifications properly may be fatal to the employer's attempt to discipline an employee.

Peter Fella, Rockland County's Commissioner of Hospitals, was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that Fella had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant assistant director of nursing position.

The Director held that the Commissioner's action violated the County's EEOP based on a finding that some employees said that they felt uncomfortable at work because Fella had this "romantic relationship" with a co-employee. This, according to the Director, created a hostile work environment and, as such, violated the EEOP. The County Executive adopted the Director's findings and suspended Fella for having created a hostile work environment in violation of the EEOP.

In its decision, the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'" Citing DeCinto v Westchester County Medical Center, 807 F2d 304, the court explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while Fella's decision to promote an individual with whom he was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the disciplinary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

Of particular interest is the Supreme Court's noting that Fella's actions may have served as a basis for discipline, albeit based on other theories of alleged misconduct. While the Court concluded there was no violation of the EEOP and thus the County could not sustain the charges it filed against Fella, the decision suggests that Fella's behavior might constitute a legitimate basis for subjecting him to disciplinary action based on other specifications.

In other words, it is possible that had the County charged Fella with misconduct based on specifications other than violating the EEOP, the court might have allowed its disciplinary action against Fella to survive.

What might constitute such a charge and specification? Perhaps charging Fella with misconduct based on his alleged selection of a person for appointment to a position in the public service solely because of a personal relationship rather than making the selection on the basis of the Constitution's mandate that selection for appointment to the public service be based on "merit and fitness."

What lesson can be learned from Fella? While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it is able to prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disciplinary probation period, the dismissal is based on the individual's failure to meet the specific requirements set out in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Taylor, a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving his disciplinary probation.

It seems that under the terms and conditions of the six-month disciplinary probation period to which the parties had agreed, the County could terminate Taylor without any hearing if, in the opinion of his superior, Taylor's job performance was adversely affected by his being intoxicated while at work during his disciplinary probation period.

Taylor, while serving this probationary period, was terminated without a hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours." The Appellate Division decided that Taylor's dismissal was improper because Taylor was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Comptroller's audit focuses on school district's payroll and overtime practices

Comptroller's audit focuses on school district's payroll and overtime practices

Source: Office of the State Comptroller, Division of Local Government and School Accountability

The State Comptroller’s Division of Local Government and School Accountability audit report of the Webster Central School District explains that the thrust of its auditing of the District “… is to help school district officials manage their districts efficiently and effectively and, by so doing, provide accountability for tax dollars spent to support district operations.”

The focus of this audit was “to determine if District officials have established adequate controls over payroll and overtime pay to effectively protect District assets from loss or misuse for the period July 1, 2008 to November 16, 2010” and addressed the following related questions:

• Has the District established and implemented adequate internal controls to ensure that only appropriate and supported payroll payments are made?

• Has the District established and implemented adequate internal controls to effectively manage overtime, control costs and safeguard District assets?

Among the recommendations made:

1. The District should restructure its payroll process to avoid making any salary payments to employees in advance of services being rendered, in compliance with Education Law, State Education Department regulations and internal control best practices.

2. The District should ensure that it complies with all legal requirements when hiring retired public employees.

The Division’s report of its findings and recommendations are posted on the Internet at:

www.osc.state.ny.us/localgov/audits/schools/2011/webster.pdf