More severe disciplinary penalty imposed by Commissioner Of Education sustained

More severe disciplinary penalty imposed by Commissioner Of Education sustained

Kloepfer v. Ambach 82 A.D.2d 974

A teacher having 11 years of satisfactory service was charged with being ineffective and incompetent following her transfer to another school. After an Education Law Section 3020-1 hearing, the hearing officer recommended that she be suspended for six months and placed in another school.

On appeal, the Commissioner of Education held the teacher should be terminated. When the teacher sued, the Court held the Commissioner could impose the penalty of dismissal.

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

Matter of Matter of Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, 2011 NY Slip Op 08703, Appellate Division, Third Department

The Civil Service Employees Association had filed a grievance challenging the dismissal of one of the employees in the collective bargaining unit it represented was terminated after failing a random test for drug and alcohol test. The issues that the parties jointly presented to the arbitrator were, "Did [the school district] violate Article IV of the Collective Bargaining Agreement [CBA] when it terminated [the employee]? If so, what shall the remedy be?"

The arbitrator determined that employee had tested positive for marijuana, but that the school district had violated the CBA by terminating her. As a remedy, the arbitrator directed that the employee be reinstate, without back pay, but required that she comply with follow-up drug and alcohol testing and an evaluation by a substance abuse professional.

Supreme Court granted the Shenendehowa Central School District’s Article 75 petition seeking vacate an arbitration award thereby “reinstating the employee’s termination.”

The Appellate Division disagreed, ruling that the award was not against public policy was rational, and in making the award the arbitrator did not exceed his powers, holding that “Supreme Court should have confirmed the arbitration award.”

The Appellate Division explained that “If a matter is submitted to arbitration, reviewing courts should not interpret substantive conditions of the agreement or delve into the merits of the dispute.” Citing Matter of Grasso, 72 AD2d 1463 [Leave to appeal denied, 15 NY3d 703], the court said that "Courts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts, but a court may vacate an award" where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, the Appellate Division stated that "[W]here an agreement is 'reasonably susceptible of the construction given it by the arbitrator, a court may not vacate the award," citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979.

Underlying the school district’s decision to terminate the employee was its assertion that it had “a zero tolerance policy concerning positive drug tests, thereby mandating discharge.” However, said the court, no such written policy was produced in evidence. Rather, the school district’s written drug testing policy states that a violation "shall be grounds for disciplinary action including, but not limited to, fines, suspension and/or discharge."

Here, said the Appellate Division, the arbitrator reasoned that the school district did not have a written zero tolerance policy. When read in conjunction with the CBA, the district’s policy “permitted either suspension without pay or discharge after a positive drug test result.”

The arbitrator, the court found, determined that school district had violated the CBA by refusing to consider the disciplinary options provided for in petitioner's own policy and the CBA, instead imposing the penalty of discharge as if it were mandatory.

According to the decision, if the school district intended to implement a zero tolerance policy, it could and should have negotiated with CSEA to include such mandatory language in the CBA. Not having done so, petitioner must abide by the language actually negotiated for and agreed upon with CSEA.

Having determined that the school district had violated the CBA, the arbitrator — who was permitted by the parties' statement of the issues to determine a remedy — then found the appropriate penalty for respondent to be reinstatement without back pay, which equated to a suspension of approximately six months without pay, a rational result and with the powers granted to the arbitrator.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08703.htm

Appointment of hearing officer and due process

Appointment of hearing officer and due process

Alhmeyer v. Retirement System, 82 A.D.2d 954

An employee occasionally may challenge the results of a disciplinary action on the grounds that due process had been denied because the appointing officer designated the hearing officer to consider the disciplinary action.

In Alhmeyer v. Retirement System, 82 A.D.2d 954, the Appellate Division held that in the absence of a factual showing of some impropriety in the hearing process, the mere fact that the Comptroller appointed the hearing officer and the doctors who examined Alhmeyer on behalf of the Retirement System does not constitute a denial of due process.

It is believed that courts would apply the same standard with respect to the appointment of hearing officers in disciplinary actions pursuant to Section 75 of the Civil Service Law as well as in hearings required pursuant to Sections 71, 72 and 73 of the Civil Service Law and similar administrative proceedings.

Refusal to submit to mental examination leads to termination

Refusal to submit to mental examination leads to termination

Lucheso v. Dillon, Sheriff, 80 A.D.2d 988

The appointing authority directed an employee to undergo a mental examination pursuant to “Civil Service Law Section 72” and advised the individual that “noncompliance would subject the employee to disciplinary action.”

The employee refused and was charged with violating the County’s work rule that prohibited the refusal to follow job instructions.

A hearing pursuant to Section 75 of the Civil Service Law was held and the hearing officer found the employee had not kept the scheduled medical appointment, had been involved in progressive discipline, and recommended removal. On appeal, the Appellate Division found that the record supported the determination and that the penalty of dismissal in view of the circumstances reflected in the record was not excessive nor its imposition an abuse of discretion.

Salary adjustments due injured firefighters

Salary adjustments due injured firefighters

Drahos v. Village of Johnson City, 80 AD2d 100

In Drahos the court held that a firefighter injured in the line of duty and unable to return to work is entitled to the full amount of his regular salary until he returns, citing Section 207-a of the General Municipal Law.

This provision, according to the opinion, includes increases and adjustments received by firefighters in active status during the period of absence.

It is assumed that the Court would grant similar treatment to police officers injured in the line of duty and otherwise eligible for equivalent benefits pursuant to General Municipal Law§207-c.

Interested in becoming a paralegal?

Interested in becoming a paralegal?

Shelby Crockett has created a Paralegal Education site called HOW TO BECOME A PARALEGAL, Complete Guide To Paralegal Schools And Degrees.

It is posted on the internet at  http://www.howtobecomeaparalegal.com and provides a comprehensive resource for persons seeking information concerning preparing to become a paralegal.

In addition, there is a link to a Blog listing various Resources and Technology related items that could be useful to paralegals as well as other helpful information.

Employer held to have committed an unfair labor practice when it unilaterally discontinued certain pension benefits.

Employer held to have committed an unfair labor practice when it unilaterally discontinued certain pension benefits.

City of Erie [Pennsylvania] v Pennsylvania Labor Relations Board, Docket # 24 WAP 2010

The International Association of Firefighters, Local 293, AFL-CIO, the exclusive bargaining representative of a unit of firefighters and other personnel employed by the City of Erie, negotiated several previous collective bargaining agreements.

In this action the Local alleged that the City had violated the terms of a contract for the period from January 1, 2005 to December 31, 2007 when it unilaterally eliminated lawful firefighter pension benefits without first collectively bargaining with the firefighters' representative.

Pennsylvania’s Collective Bargaining by Policemen and Firemen Act requires negotiation over the modification or elimination of pension benefits.

Supreme Court found no applicable exception to this statutory mandate, reversing the order of the Commonwealth Court rejecting the Local’s claims.

The decision is posted on the Internet at:

http://statecasefiles.justia.com/documents/pennsylvania/supreme-court/24-wap-2010.pdf?1322273066

Employees cannot avoid competitive examination otherwise required

Employees cannot avoid competitive examination otherwise required

Bloomberg-Dubin v Board of Education, 82 AD2d 854, affd 56 NY2d 555

In a case involving the question of whether the New York City Board of Education could require certain teachers to be subject to appointment and licensing by competitive examination, the court stated that the Board could not be stopped from requiring that the competitive examination be held.

Although the teachers involved held “conditional certificates”, they were required to take the examination ordered by the Board.

Refusal to provide doctor’s note concerning absence from work

Refusal to provide doctor’s note concerning absence from work

Carr v. Ross, 81 A.D.2d 999

A teacher, absent for five days, was paid for three days of the absence alleged due to a back injury but the school district refused to pay for absence beyond the third day without a doctor’s note verifying an illness or injury.

The teacher refused to provide a doctor’s note and resigned “because of his employer’s insistence that he furnish a doctor’s note before he would be paid for two of the days he was absent”. He also stated that he belonged to a religious group that forbids the use of medical doctors except in life or death situations.

The Unemployment Insurance Appeals Board found that the educator had left employment for personal and non-compelling reasons and disqualified him for benefits.

Using time cards

Using time cards

Walker v. Washington, 657 F2d 541

An employee, claiming that his agency’s requirement that he fill out and sign a time card was demeaning, degrading and incriminating, sued the State of Washington. The Circuit Court of Appeals held that requiring an employee to complete a time card was not an “illegal search” and that the employer could properly ask an employee to account for the time for which he was being paid.

The Supreme Court declined to hear the appeal from the decision filed by Walker.

Accepting a lower paying position to avoid layoff

Accepting a lower paying position to avoid layoff

Almond v Kansas Unified School District, USCA, 10^th Circuit, Docket #10-3315

Former employees of the Kansas Unified School District #501 alleged that they had suffered wage discrimination as the result of their having been offered, and their accepting, new positions with lesser pay within the District rather than being laid off as the result of a District-wide downsizing effort.

As they had not filed their claims until several years after the alleged pay discrimination took place, federal district court ruled that their action was untimely.

While the case was pending Congress enacted the "Ledbetter Act"* specifically aimed at addressing "discrimination in compensation" claims in which members of a protected class receive less pay than similarly situated colleagues.

Although the employees contended that their claims included “Ledbetter Act” violations, the Tenth Circuit concluded that because the employees had not alleged an unequal pay for equal work claim, the Ledbetter statute of limitations did not apply to their cause of action. Accordingly, said the court, the pre-Ledbetter rules applied and under those rules their claims were untimely.

* The Ledbetter Act came in response to the Ledbetter case. Lilly Ledbetter proved that her supervisors gave her poor performance reviews because of her gender — and that these reviews, in turn, caused her employer to pay her less than similarly situated male workers. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618.

The decisions is posted on the Internet at:

http://www.ca10.uscourts.gov/opinions/10/10-3315.pdf

Writ of mandamus to compel disclosure of records pursuant to FOIL

Writ of mandamus to compel disclosure of records pursuant to FOIL

State ex rel. Dawson v Bloom-Carrol Local School District, Ohio Supreme Court, Docket 2011-0145

A parent sought a writ of mandamus* to compel a local school district to provide her with itemized invoices of law firms for services it bill the district concerning the parent’s children, and any communications from the school district's insurance carrier concerning litigation she brought against the district on behalf of one of her children.

Ohio Supreme Court denied the writ, explaining that the requested records were exempt from disclosure under Ohio’s Public Records Act because the school district met its burden of establishing the applicability of the attorney-client privilege to the requested records.

* “Mandamus was one of a number of ancient common law writs and was issued by a court to compel an administrative body to perform an act required by law.

Selected PERB decisions

Selected PERB decisions

Duty of fair representation

     The Union violated its duty to represent a non-member of the Union in the collective bargaining unit when it refused to appear on behalf of the non-member teacher in a hearing before the School Board regarding the teacher’s unsatisfactory performance rating. (Case U-4165 Matter of United Federation of Teachers)

Bargaining in good faith

     A School District could not refuse to pay a school administrator benefits provided under an expired contract (pay for accumulated sick leave credits upon retirement) when the record shows that the District did not bargain in good faith regarding the continuation of such benefit. (Case U-4616 Matter of Levittown Union Free School District)

Work now, grieve later

     Employee’s mistaken belief that the employer was in violation of the contract did not excuse his refusing to work, but even if he were correct, he would have been wrong in absenting himself from work as the proper recourse was to grieve the matter. (Case U-4642, Matter of Nassau County Chapter CSEA)

Scott v Wetzler, 195 AD2d 905, illustrates an application of the general rule that except in life-threatening situations, or in situations where the employee is asked to perform a clearly unlawful act, if an employee objects to complying with a superior's directive, he or she should "work now, grieve later."

Non-mandatory subjects of collective bargaining:

    Benefits for employees already retired, the number of full-time employees required and demands to fill vacant positions are not mandatory subjects of negotiations under the Taylor Law. (Case U-4905, Matter of the Village of Hudson Falls)

Criminal conviction requires finding of guilt in administrative disciplinary proceeding

Criminal conviction requires finding of guilt in administrative disciplinary proceeding

Kelly v. Levin, 440 NYS2d 424

A school business administrator was charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law Section 3020-a disciplinary panel found the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.

Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being charged under Section 3020-a (see People v. Kelly, 72 AD2d 670).

The court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. As the hearing panel’s decision was based on a finding of guilt of “bringing discredit” charge only, the matter was remitted after the Court reversed the panel’s finding of not guilty of the charges and remanded the matter to the panel for it’s reconsideration of the appropriate penalty to be imposed.

Termination date change does not adversely affect eligibility for Unemployment Insurance benefits

Termination date change does not adversely affect eligibility for Unemployment Insurance benefits

Kalichman v. Ross, 439 N.Y.S.2d 718

When a school secretary was informed that her last day of work would be August 22, she asked that the last date of her service be changed to August 18.

Although the school approved the change, her unemployment insurance claim was rejected because she left on a “voluntary basis”.

The Court held that the change of date in this case was not significant and did not change an involuntary termination into a voluntary one. It then ordered the payment of the unemployment insurance claim.