PERB determinations

PERB determinations

Use of automobiles

The Public Employment Relations Board has ruled that the use of automobiles is an item subject to mandatory negotiations. In a case involving the City of Buffalo (Case U-4473). PERB held that the City could not unilaterally restrict employees from using their automobiles in connection with their work as such action was a “unilateral discontinuation of a past practice.” Buffalo had stopped permitting certain employees to charge for the use of their car in connection with travel on the job and offered “bus fare” instead. In another case, PERB held that Nassau County could not stop its “past practice” of assigning certain workers County owned vehicles on a 24 hour basis without first negotiating the matter with the Union.

No smoking areas

The Steuben-Alleganay BOCES had designated certain areas as smoking areas for its employees, prohibiting smoking in other parts of the building. When the Union challenged the work rule, PERB affirmed a hearing officer’s ruling that the employer could not unilaterally restrict employees to smoking in specific areas of a building, as employee smoking is a mandatory item of negotiations under the Taylor Law (Case U-4259)

Two different complaints; two different forums

Two different complaints; two different forums

Gondola v. Center Moriches Union Free School District, 80 A.D.2d 600

When an employee attempted to maintain a complaint before the Division of Human Rights based on alleged discrimination and at the same time sue the employer for alleged breach of contract, the Supreme Court held that Section 297.9 of the Executive Law prohibited the employee from seeking relief on a single discriminatory grievance in two forums.

The Appellate Division reversed, pointing out that Section 296.9 “cannot be employed to bar an aggrieved person from maintaining a proceeding before the State Division of Human Rights based upon a discrimination complaint, while contemporaneously maintaining an action in the courts based on the alleged breach of an employment contract”, citing Matter of Richardson Employment Agency, 40 AD2d 585.

Pre-employment physical examination not employment

Pre-employment physical examination not employment

Rastaetter v. Charles S. Wilson Memorial Hospital, 436 N.Y.S.2d 47

An individual undergoing a required pre-employment physical examination is not to be considered an employee within the meaning of the Workers’ Compensation Law in the event the person is injured during the physical examination.

In Rastaetter the Appellate Division held that the principal factors to be considered in determining whether an employer-employee relationship exists under such law are the right to control, the method of payment, who furnishes the equipment, the right to discharge and the relative nature of the work.

The court then said “Clearly, these factors demonstrate that a pre-employment physical examination would not be covered by the Workers’ Compensation Law.”

The court also held that this was not a “try-out” situation, as the individual was not “trying out” for employment by working in any manner citing Matter of Smith, 4 AD2d 12 and Matter of Bode, 9 AD2d 969.

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

When the Commissioner of Administration rejected a hearing officer’s recommendation that an employee be reinstated to her position, the Union sued on behalf of the employee.

The case arose following the finding by the Commissioner that Ziehm (who was now living in Lackawanna) had forfeited her position by failing to maintain a permanent residence in the City of Buffalo (Buffalo City Ordinance, Chapter 1, Section 4,).

The question before the hearing officer was whether Ziehm came within the provisions of a Taylor Law contact which excused “any employees presently living outside the City” (adopted effective January 1, 1977) from the requirements of the Ordinance.

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

Do it now grieve it later rule applied in a challenge to an administrative decision

Do it now grieve it later rule applied in a challenge to an administrative decision

Hurwitz v. Regan , 90 A.D.2d 659, Motion for leave to appeal denied, 58 N.Y.2d 609

As a general rule in labor relations, when there is a supervisor/employee difference of opinion concerning an assignment, unless a dangerous situation exists, the employee should “do it now; grieve it later.”

Apparently the same rule will apply in connection with some administrative decisions as well.

When a former member of the New York State Employees’ Retirement System [ERS] was re-employed by a public employer, he sought to reinstate his former Tier I ERS membership.

ERS said no, explaining that he had cease to be a member of ERS in 1970 and had to rejoin as a Tier II member. He finally joined the System as a Tier II member in late 1975.

When the Retirement and Social Security Law was amended in 1977 (C. 973; L. 1977) to allow Tier II members who had been Tier I members who “rejoined within five years” to get back into Tier I, the employee again attempted to regain his Tier I membership. He, again, was refused by ERS and sued.

The Appellate Division noted that the employee had not rejoined ERS until more than five years had passed.

Had he filed a Tier II application in 1974 while contesting the ERS determination concerning the denial of his application for Tier I status, presumably he would have met the requirement of the 1977 amendment.

Probably it is best to do something “under protest” and argue about it later, especially when the consequences of inaction may cause even greater problems.

Court of Appeals rules on seniority for layoff

Court of Appeals rules on seniority for layoff

Hondzinski v. County of Erie, 57 NY2d 715

As more and more jurisdictions cut back in personnel, seniority for layoff purposes becomes a critical issue. The Court of Appeals recently decided a case involving the crediting of seniority upon the “grandfathering” of an employee into the competitive class.

The decision indicates that when a “civil” deputy sheriff position was, by local law, placed in the competitive class* an incumbent who had been in the position for more than one year proceeding the change in jurisdictional classification was entitled to seniority for layoff purposes from the date when the position was placed in the competitive class.

Hondzinski, however, had claimed that his seniority should run from the date of his original appointment as a civil deputy in 1960.

Actually there would be two dates for seniority for the purposes of layoff in this type of situation.

The “1973” date would control in determining seniority for the entire work force, thereby protecting the rights of all competitive class employees.

The original date of appointment of Hondzinski as a civil deputy could be used to determine seniority for the “grandfathered” deputy sheriffs “as among themselves.”

Section 45 of the Civil Service Law provides for such a dual test with respect to the employees of a private employer upon its acquisition by government.

 If a layoff affects a “1973 grandfathered” deputy sheriff, then a further determination as to the least senior of these “1973 deputies” based on their original date of appointment as civil deputies could be made for the purposes of determining which “1973 deputy” has greater rights “as among themselves” to retention in the face of a layoff. In effect, there would be a “seniority list” within a “seniority list.”

* So-called Flaherty deputy sheriffs -- civil deputies, as distinguished from "criminal deputies" --had been exempted from the civil service system on the grounds that the sheriff who had hired them was personally liable for any misconduct or negligence of his or her civil deputies. The term "Flaherty deputies" was applied to such employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of the civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). The New York State Civil Service Department decided that Flaherty no longer applied following a 1990 amendment to the State Constitution that deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment allowed a county to assume liability for the acts of a sheriff's civil deputies, the department reasoned that where the county assumed such liability the rationale for the exemption of Flaherty deputies from the civil service law was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of these civil deputies.

Firefighter injured in an altercation with another firefighter during a New Year’s party at the firehouse denied accidental disability retirement benefits

Firefighter injured in an altercation with another firefighter during a New Year’s party at the firehouse denied accidental disability retirement benefits

Matter of Matter of Walsh v Scoppetta, 2011 NY Slip Op 09160, Court of Appeals

A New York City Fire Department firefighter got into a "loud and heated" argument with a fellow firefighter in the kitchen of the firehouse in the course of a New Year’s Eve party. Their dispute, as characterized by the Court of Appeals was ”fueled by the prohibited consumption of alcohol [and] escalated from mutual taunting and provocative insults to assault when the other firefighter hit Walsh over the head from behind with a metal chair, knocking him to the floor.”

Walsh was subsequently diagnosed with a postconcussional disorder, entailing "sensory nerve dysfunction on his face and leg, headaches, and memory, concentration and sleep disturbance" and the New York City Fire Commissioner ultimately filed an application for ordinary disability retirement* on his behalf. Walsh, however, filed an application for accidental disability retirement,** which provides greater benefits than ordinary disability retirement.

The Medical Board recommended that the New York City Fire Department Pension Fund’s Board of Trustees grant Walsh ordinary disability retirement benefits rather than accidental disability retirement benefits.

As the Board deadlocked on the question of approving Walsh’s application for accidental disability retirement, he was retired with ordinary disability retirement benefits.

 

Walsh then filed an Article 78 petition seeking to annul Board's denying him a line-of-duty accidental disability retirement. Supreme Court dismissed Walsh’s petition, which ruling was affirmed by the Appellate Division (see 73 AD3d 1192).

The Court of Appeals affirmed the lower courts’ rulings, explaining that “We may not set aside the Board of Trustees' denial of accidental retirement on the basis of a tie vote "[u]nless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.”

Noting that Walsh’s injuries resulted solely from an altercation with a fellow firefighter rather than his performance of any job duties, the Court said that it need not consider and did not decide whether, or under what circumstances, injuries caused by the intentional act of a third party are accidental within the meaning of §13-353 of the New York City Administrative Code.

* §13-352 of the New York City Administrative Code, Retirement for ordinary disability, is posted on the Internet at:

http://codes.lp.findlaw.com/nycode/ADC/13/3/2/13-352

** §13-353 of the New York City Administrative Code, Retirement for accident disability, is posted on the Internet at: http://codes.lp.findlaw.com/nycode/ADC/13/3/2/13-353

The decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09160.htm

Employee may not demand union proceed to arbitration as a matter of right

Employee may not demand union proceed to arbitration as a matter of right

Matter of Hoffman; Board of Education of the City of New York, 84 A.D.2d 840

 

Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their unions decision not to go to arbitration are now frequently turning to the courts for an order to permit their proceeding against the employer directly.

In Hoffman the Appellate Division ruled that the Union (in this instance the United Federation of Teachers) was not required to seek arbitration after having processed the employee’s grievance through the initial stages of the grievance procedure and received unfavorable results.

The court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct).

Here the employee had sought a benefit from an earlier arbitration award which gave relief for an “interrupted” sabbatical leave.  The employer refused to apply the arbitration award decision claiming that the employee’s application for the benefit was untimely. The Union had refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.

Union official’s advice to employee protected act

Union official’s advice to employee protected act

PERB Case U-5775

The union’s representative advised a co-worker not to answer questions concerning alleged violations of provisions of the “faculty handbook.”

The representative then received a letter, a copy of which was placed into his personnel file, indicating that the “instruction to the employee not to answer (the) question” was considered “insubordination ... and any recurrence ... would result in (a) recommendation ... that disciplinary action be taken.”

PERB ruled that the representative was engaged in a protected activity under the Taylor Law and directed the letter to be withdrawn and not considered for any purpose.

N.B. Although the Union’s representative’s right to give advice is protected, should the advice be incorrect, the employee who follows such advice may expose himself or herself to the risk of charges of misconduct or insubordination.

Retirement membership credit available only to employees

Retirement membership credit available only to employees

Sitrin v. Regan, 90 AD2d 583

Holding that she was an independent contractor and not an employee, the Appellate Division upheld the Employees’ Retirement System’s denial of certain (retroactive) membership service credit claimed by a member.

Citing a number of cases including Erwin v. Regan, 89 A.D.2d 753 [Affd. 58 N.Y.2d 722], the Court rejected Sitrin’s arguments noting that during the period for which membership was claimed she was paid by “voucher,” had no payroll deductions for retirement or social security, did not accrue vacation or sick leave credits and had conceded that the decisions she made were not subject to review.

This is another example of the strict standards applied by ERS in these cases, which standards have survived court tests.

         

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Thomas v City of Oneonta, 2011 NY Slip Op 08711, Appellate Division, Third Department

Andrew Thomas, while serving as a City of Oneonta police officer, reported various acts of alleged on-duty misconduct allegedly committed by certain of his fellow officers to his supervisor and then repeated these allegations to the Chief of Police. As a result of an investigation of the officer’s allegations three officers were placed on suspension.

Shortly after Thomas had reported the alleged misconduct he was assigned “to the 4:00 P.M. to midnight shift (instead of his usual day shift), his days off would switch from weekends to midweek and he would be assigned certain additional duties previously performed by one of the suspended officers”

Thomas subsequently told his superior officers that he was being harassed by the suspended officers, contended that he was being punished for reporting the alleged misconduct.

Thomas then resigned from this position with the City of Oneonta Police Department and some time later served a notice of claim on the City [see General Municipal Law §50-e] and then commenced a lawsuit against City pursuant to Civil Service Law §75-b alleging, among other things, that he was the victim of retaliatory personnel actions. The City’s answer contended that Thomas’ action was filed after the Statute of Limitations had expired.

The Appellate Division said that in order to maintain such an action as this, a plaintiff is required to serve a notice of claim upon defendant within 90 days after his or her underlying claims arose and, further, must commence his or her action "within one year after the alleged retaliatory personnel action[s]" took place.

Here, said the court, Thomas’ claim arose when his work schedule and the assignment of additional duties became effective on or about October 6, 2009, but he had not served his notice of claim until February 5, 2010 — well beyond the 90-day statute of limitations period. In addition, the Appellate Division noted that the action was not commenced until November 3, 2010, clearly beyond the controlling one-year statute of limitations.

As to Thomas’ “constructive discharge claim,” the Appellate Division, citing Clark v State of New York, 302 AD2d 942, ruled that that claim “is equally untimely, as such claim arose when he tendered his resignation on November 2, 2009  — the date upon which Thomas "severed his relationship with his former employer" rather that not the date upon which he deemed his resignation to be effective.”

Addressing Thomas’ claim of a “continuous violation,” the court held that the continuing violation doctrine does not operate to toll either of these statute of limitations periods. The Appellate Division explained that, the doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08711.htm

Denial of tenure alleged to have been based on the educator’s exercising her First Amendment rights to free speech

Denial of tenure alleged to have been based on the educator’s exercising her First Amendment rights to free speech

Nagle v Mamaroneck Union Free School District, et al, USCA, Second Circuit, Docket #10-1420-cv

Nancy L. Nagle sued the Mamaroneck Union Free School District and a number school district officials alleging that she had been denied tenure and subjected to retaliation because she had exercised her First Amendment rights to free speech.

Nagle complaint alleged that the decision not to recommend her for tenure was made in retaliation for two acts that, she argued, were protected by the First Amendment.

One act on which Nagle based her claim involved her reporting alleged acts of child abuse by another teacher to her principal, including her claim that she witnessed the teacher striking a child while she was employed as a special education teacher by a public school in the State of Virginia.*

The second act alleged by Nagle was that she had received a copy of a teaching observation report of her class written and signed an assistant principal but that she declined to sign the report. However, she alleged, she received a copy that “appeared to bear her signature.” Reporting the “seemingly false signature” to school officials and the president of the teacher’s union, the matter was referred to police. Although the police “determined that no crime had been committed, a separate handwriting experts were employed by Nagle and by the District. Both experts concluded that the assistant principal had signed Nagle’s name to the document.**

Essentially the federal district court ruled that [1] Nagle’s speech was not protected within the meaning of the First Amendment because it was “personal” and it was not a matter of public concern and [2] ruled that the school officials had a “qualified immunity” in that, as a general rule, unless the individual is able to demonstrate "publication" and prove "malice," courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."***

The Court of Appeals for the Second Circuit disagreed.

The court concluded that Nagle has made a prima facie showing that retaliation in violation of the First Amendment caused her to be denied tenure.

The Circuit Court said that although the School District’s rebuttal to Nagle’s prima facie case is subject to credibility, the issue of credibility cannot be resolved as a matter of law. Further, said the court, certain of the school administrators are not, “at this stage of the proceedings, entitled to qualified immunity.”

Accordingly, the Circuit Court vacated the district court’s order granting summary judgment and remanded the matter for further proceedings.

* According to the Circuit Court’s decision, the teacher alleged to have abused the students resigned, citing family reasons. . Nagle then reported what she had told school administrators to Virginia’s Department of Child Protective Services and to the Virginia state police. After a police investigation, the teacher was charged with several counts of felony child abuse; she eventually pled guilty to assault.

** The district “declined to renew” the assistant principal’s contract for the following year, and the assistant principal resigned

*** The Doctrine of Qualified Immunity protects public officials from being sued for damages unless it can be shown that they violated “clearly established” law of which a reasonable official in his position would have known. In contrast, the Doctrine of Absolute Immunity bars lawsuits against public officials based on their official acts or omissions without regard to motive. For example, a judge has complete protection from personal liability for exercising judicial functions.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/38102ca1-147a-4e75-85f4-f92e3c0f13f6/9/doc/10-1420_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/38102ca1-147a-4e75-85f4-f92e3c0f13f6/9/hilite/

Settlement of grievance binds all unit employees

Settlement of grievance binds all unit employees

Decisions of the Commissioner of Education, Decision #10728

Former Section 3102 (6) of the Education Law (repealed in 1971) permitted School Boards to place newly employed teachers on the salary schedule reflecting prior teaching service.

In 1978 the Nanuet Teachers Association brought a grievance claiming the District had violated a contract provision by failing to properly calculate the length of service of teachers earlier granted “transfer credit.”

The grievance was “settled” in the course of arbitration. As a result 39 “otherwise eligible” teachers did not have their transfer credit counted in computing their eligibility for longevity increments.

The 39 educators appealed to the Commissioner of Education, contending claiming that the “settlement” was not binding upon them and, further, their employee organization did not fairly represent them.

The Commissioner rejected the appeal. He indicated that the 39 teachers, not having “opted out” were bound by the agreement. The employee organization had brought the grievance on their behalf (among others) and that part of the agreement (which provided the District would not reduce the number of teachers employed by the District) was to their benefit.

As to the argument that the agreement violated “unambiguous case law” regarding the recognition of transfer credit, the Commissioner ruled that teachers may waive their legal rights under situations such as this, and if done so on their behalf by the employee organization, it is binding upon them.

The expiration of the three-year term contemplated by the agreement did not alter the understanding reached as to transfer credit and the teachers could not now claim such credits as though the settlement had never been agreed to by the parties.

As a general rule, when an employee organization acts within its authority, all the persons it represents are bound by the results, unless individuals indicate, before the fact, that they do not intend to be bound by the results.

Taping of a negotiating session prohibited by PERB

Taping of a negotiating session prohibited by PERB

Matter of County of Niagara, Case U-5735

PERB, affirming its Hearing Officer’s decision, held even the presence of a tape recorder at a negotiating session is improper if a party objects.

Earlier decisions had indicated that it was improper for a party to insist on the recording (by mechanical means) of negotiations.

The decision extends the prohibition to the mere presence of a tape recorder if a party finds it objectionable.

Of course the parties remain free to take contemporaneous written notes of the “history of negotiations”, but presumably verbatim transcriptions would also raise concerns which could inhibit negotiations and be prohibited if a party objects.

Appeal results in a “permanent” reprimand

Appeal results in a “permanent” reprimand

Decisions of the Commissioner of Education, Decision 10933

A teacher was found guilty of insubordination (refusal to act as a chaperone at a school event) and the disciplinary panel imposed the “penalty of a reprimand, to be expunged from ... (the) records if for the next two years there are no further disciplinary problems of a similar nature.”

The school district appealed to the Commissioner of Education, arguing that the penalty was not authorized by Section 3020-a of the Education Law.

The Commissioner agreed. He found that the penalty to be imposed is limited to one of the penalties enumerated in the law but that a reprimand is one of the penalties authorized.

He then held that the disciplinary panel lacked the authority to direct the Board of Education to later expunge the reprimand from the teacher’s file for “good behavior.” [See Opinions of the Attorney General 81-28].

The Commissioner then exercised his authority to impose a penalty, and ruled that a reprimand would be appropriate under the circumstances.

Presumably the reprimand will remain a permanent part of the teacher’s file unless the Board chooses to later remove it.