Independent contractor denied retirement system credit

Independent contractor denied retirement system credit

Senapole v. Field, 88 A.D.2d 1012

The Town of Colonie designated a person to serve as “clerk of the works” for a Town building project. When he was denied retirement credit (he was a member of the Employees Retirement System in connection with previous State employment) he sued the Town.

The Appellate Division held that as the “owner’s representative” Senapole served as an independent contractor and therefore he was not an employee of the Town.

Noting that Senapole had no superior who supervised his work, reported to the Town Supervisor regarding the progress of the project, and that he was not on the Town’s payroll (Senapole was paid by “voucher”), the Court concluded that he was not an employee for the purposes of the Retirement and Social Security Law. 

Union gets employer's records under Freedom of Information Law

Union gets employer's records under Freedom of Information Law

Matter of Quirk v Evans, 116 Misc.2d 554

When the Office of Court Administration resisted a union demand for documents it wanted in connection with its challenge to job classifications, the Union sued.

Supreme Court said the Union had a right to the information it sought to obtain under the Freedom of Information Law.

OCA is not “a court” and its records are not automatically exempt from disclosure.

In the federal sector, the Federal Labor Relations Authority held that the Union had a “special status” as an employee representative and therefore is entitled to information normally outside the (federal) Freedom of Information Act (8 FLRA 108)

An arbitrator’s power to issue an arbitration award is limited to those powers set out in the collective bargaining agreement

An arbitrator’s power to issue an arbitration award is limited to those powers set out in the collective bargaining agreement

Matter of Matter of County of Putnam v Putnam County Sheriff's Employees Assn., Inc., 2011 NY Slip Op 09320, Appellate Division, Second Department

In this CPLR Article 75 action the County asked Supreme Court to vacate an arbitration award. The Sheriff’s Employees Association, on the other hand, cross-petition the court to confirm the award. 

Supreme Court granted the County’s Petition and the Association appealed.

The Appellate Division said that “A court may vacate an arbitration award on the ground that the arbitrator exceeded his power only where the arbitrator's award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.”

Here, said the Appellate Division, Supreme Court properly found that the arbitrator, in effect, “revised, modified, and altered the parties' agreement, which was specifically prohibited by the arbitrator's powers defined in the parties' collective bargaining agreement.”

Thus, ruled the court, Supreme Court properly granted the County’s petition to vacate the award and denied the Association’s cross motion to confirm the award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09320.htm

A notice of claim served on a public entity must set out the basis for the claim sufficient for it to investigate the claim

A notice of claim served on a public entity must set out the basis for the claim sufficient for it to investigate the claim

Miller v City of New York, 2011 NY Slip Op 08495, Appellate Division, First Department

In cases where the conduct complained encompasses a New York City Department of Education’s employee’s scope of his or her public employment, a notice of claim in accordance with Education Law § 3813[2] and General Municipal Law § 50-i is required as a condition precedent to commencing an action against the employee of the New York City Department of Education [DOE].

In an action that, in effect, claimed a tortious interference with contractual rights, the Appellate Division that Adam Miller did, in fact, filed a notice of claim which described in detail the time, place and manner of the conduct by DOE’s employee that allegedly interfered with his tenure rights and continued employment with the DOE, as well as his ability to enter into employment with other schools.

Citing DeLeonibus v Scognamillo, 183 AD2d 697, the Appellate Division said that although Miller had not used the words "tortious interference with contract," a notice of claim does not have to set forth a precise legal theory of recovery.

All that is required is that the notice of claim described in “sufficient detail the time, place and manner of the occurrence and a plaintiff's damages to advise the City of the basis for the claim so as to provide it with an opportunity to investigate” the allegations.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08495.htm

Court sets Taylor Law arbitration guidelines

Court sets Taylor Law arbitration guidelines

Board of Education v. West Babylon Teachers’ Association, 52 NY2d 1002

The Court of Appeals has set a number of guidelines concerning arbitration under the Taylor Law.

In Board of Education v. West Babylon Teachers’ Association the court indicated that a stay of arbitration would not be granted where the arbitration would not violate strong public policy and the provisions of the collective bargaining agreement are sufficiently broad and unambiguous as to encompass the subject matter of the dispute.

A stay is appropriate only where the disputed issue falls outside the contract’s arbitration provision or where arbitration would violate public policy (i.e., tenure decisions) and it is for the arbitrator to interpret the substantive provisions of the agreement regarding arbitration.

The case involved the abolition of several positions and a driver education program.

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.