PERB determinations

PERB determinations

     Police Union demand that employer match an employee’s purchase of U. S. Savings Bonds is a mandatory item of negotiations. Spring Valley PBA v. Village of Spring Valley, Case U-4856.

     Involuntary transfer of teacher to another school at the request of the principal following the denial of her grievance by the principal because the teacher complained to the principal’s superiors held to be a violation of the teacher’s statutory right to file a grievance. Elmira School District v. Benson, Case U-4426; 4427.

     BOCES could establish a layoff policy based on an employee’s qualifications and performance, with seniority used only as a tiebreaker. In the Matter of Nassau County BOCES, Case U-4441. (The employees involved were in the non-competitive class and not subject to Civil Service Law layoff provisions).

     Union’s refusal to sign a final agreement which reflected the provisions of the tentative agreement was improper and in violation of Section 209-a of the Civil Service Law. N.Y. State Nurses Association v. Onondaga County, Case U-4807.

     “Job security” is not a term and condition of employment and therefore not a mandatory subject of negotiations. Spencerport Transportation Authority v. PERB, Appellate Division, 4th Department, 1981.

The school board rather than an arbitrator makes ultimate decision regarding tenure

The school board rather than an arbitrator makes ultimate decision regarding tenure

Liverpool Faculty Association v. Liverpool Central School District, 52 N.Y.2d 1038

The New York State Court of Appeals has ruled that although the arbitrator had interpreted a collective bargaining agreement to limit the district superintendent’s power concerning tenure recommendations, the authority of the School Board to make the ultimate decision to grant or withhold tenure was not in any way impaired.

The decision of the arbitrator was not violative of public policy as set forth in Sections 2509, 2573, 3012 and 6212 of the Education Law according to the Court.

The award did not interfere with the decision-making powers of the School Board although it did require the District to retain the probationary teacher for an additional year so that her performance could be evaluated as provided in the contract.

The court noted that a different conclusion might result if the case involved a city having a population of 400,000 or more as the recommendations of a district superintendent regarding tenure in such a situation are binding on the School Board (Section 2573, Education Law).

A question of standing

A question of standing

Burke v. Bahou, 91 A.D.2d 705

When an employee brought suit contending that the determination of the State Civil Service Commission regarding a reclassification was arbitrary, the Appellate Division dismissed the action on the grounds that the Burke did not have standing to bring the suit because he was not the incumbent of the reclassified position.

The court indicated that only the employee occupying the reclassified position or the appointing authority concerned could challenge the determination, citing Section 120 of the Civil Service Law.

Provisional employee loses bid for permanent appointment

Provisional employee loses bid for permanent appointment

Haynes v. Chautauqua County, 55 NY2d 814

In Haynes the court held that reachable for appointment from the eligible list does not serve to give a provisional employee any right to selection for the permanent appointment.

Haynes had been removed from the position about a month following the certification of the list and had sued for reinstatement.

The decision indicated that Section 65.3 of the Civil Service Law permitted termination of a provisional within two months and contrasted the situation with that in Roulett v. Hempstead, 40 AD2d 611, where a provisional employee, eligible for permanent appointment, was retained in the absence of a three name eligible list in excess of the probationary period for the position.

The Court also noted that Haynes did not become a “probationary employee” by operation of law and could be removed without notice and hearing.

In contrast, the Court of Appeals reversed a lower court and held that a provisional employee does have a right to a permanent appointment. In LaSota v. Green, 53 NY2d 491 ruling that unlike Haynes, LaSota, a provisional for more than nine months and first on the eligible list, obtained a permanent appointment by operation of law when he was retained as a provisional after the establishment of the list. 

The distinction here was that in LaSota there was no mandatory list while in Haynes the list consisted of more than three candidates interested in the position. 

Accordingly, in LaSota the provisions of Civil Service Law Section 65.4 rather than 65.3, applied. 

Thus the LaSota determination, although extending Roulett [see 40 AD2d 611], is consistent the determination in Haynes. The Court took special note of the nine-month limitation on provisional appointments contained in Section 65.2 of the Civil Service Law.

Governor Cuomo and PBA of New York State announce tentative contract agreement

Governor Cuomo and PBA of New York State announce tentative contract agreement

Source: Office of the Governor

Governor Andrew M. Cuomo and Manuel M. Vilar, President of the Police Benevolent Association of New York State, on December 23, 2011 announced a contract agreement between the state and the labor union representing New York State's University Police, Park Police, EnCon Officers and Forest Rangers.

The agreement resolves outstanding wage and contractual issues dating to 2005 and provides the officers with a retroactive wage increase adjustment, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The agreement provides for zero percent wage increases for 2011-2013, a 2% increase in 2014, 9 days of deficit reduction leave, and adjustments to the health insurance premium.


The Agency Law Enforcement Services Unit (ALES) is composed of University police, Park Police, EnCon Officers and Forest Rangers. They have not had a contract since 2005 and were in arbitration for the years 2005-2007.

Highlights of the tentative agreement, which will require ratification by the full PBANYS membership, include:

· Zero percent wage increases for 2011-2013, a 2% increase in 2014,

· A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year

· Deficit Reduction Leave of five days this fiscal year and four days next fiscal year

· Retroactive payments that are scheduled to be paid in two installments -- one this fiscal year and one next fiscal year before the end of the calendar year.

· Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for family premiums.

· Random drug testing and drug testing for probationary employees in addition to reasonable suspicion testing.

· A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of the Union and the GOER Director for implementation.

· A health plan opt out so officers can opt out through a spouse/partner to a non-State health plan. Under the opt out, participants would receive $1,000 individual/$3,000 family

· Officers will receive broad layoff protection. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

Arbitrator’s disciplinary decision must be sustained by the court if there is a rational basis for, and sufficient evidence to support, the determination

Arbitrator’s disciplinary decision must be sustained by the court if there is a rational basis for, and sufficient evidence to support, the determination

Matter of Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 2011 NY Slip Op 08601, Appellate Division, Second Department

The §3020-a hearing officer sustained a charge of misconduct against the teacher and directed the placement of a counseling memo in her personnel file as the penalty to be imposed.

The charges filed against the teacher followed her participation in a teachers' union action involving approximately 15 teachers who parked their cars along the street in front of the school just before the start of the school day. The Board alleged that this "resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard."

In response to Article 75 petitions filed, respectively, by the teacher and the Board, Supreme Court granted the teacher’s petition to vacate the penalty portion of the hearing officers determination and denied the Board’s petition to vacate the award on the ground that the penalty imposed was too lenient. Supreme Court decided that the hearing officer's fact-findings did not support his finding of culpability, and thus, there was no rational basis for finding the teacher guilty of the disciplinary charges.

The Appellate Division modified the lower court’s ruling, explaining that where the parties are compelled to engage in arbitration by statute (see Education Law § 3020-a[5]), "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Accordingly, to be sustained, the arbitrator’s award "must have evidentiary support and cannot be arbitrary and capricious."

Here, the hearing officer concluded that the undisputed "arrangement of cars in which [the teacher] participated created a safety hazard. Many students . . . could not be dropped off at curbside. Instead, the cars had to stop in the middle of the road and students had to walk in the road to enter the school."

Under these circumstances, said the court, there was a rational basis for, and sufficient evidence to support, the hearing officer's conclusion that the petitioner was culpable of the charge preferred against her. Accordingly, “Supreme Court erred in granting the [teacher’s] petition to vacate the determination on the basis that it was arbitrary and capricious.

Further, the Appellate Division said that Supreme Court should not have denied the Board’s petition on the grounds that it was “moot” but, rather, should have denied it on the merits as the penalty imposed by the arbitrator, placing a counseling memo in the teacher’s personnel file was within the arbitrator's power and did not violate public policy.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08601.htm

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.