If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the relationship of the subject matter of the dispute to the general subject matter of the CBA

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the  relationship of the subject matter of the dispute to the general subject matter of the CBA

Matter of Haessig (Oswego City School Dist.), 2011 NY Slip Op 09723, Appellate Division, Fourth Department

In this CPLR Article 75 action the president of the Oswego Classroom Teachers Association, Brian Haessig, sought a court order to compel the arbitration of a grievance filed after the school district assigned an additional instructional class to teachers for the 2010-2011 school year. The school district, on the other hand, asked for a stay of arbitration on the ground that the grievance was not arbitrable.

The Appellate Division affirmed Supreme Court’s granting Haessig’s petition while denying the school district’s cross-motion to stay the arbitration.

Citing Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division explained that when, as was here the case, the collective bargaining agreement [CBA] contains a broad arbitration clause, the court’s determination of arbitrability is limited to "whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.”

In addition, the Appellate Division said that notwithstanding the CBA provision that "the term grievance' shall not apply to any matter as to which (1) the method of review is prescribed by law, or rules or regulation having the force or effect of law…”the fact that the Commissioner of Education has promulgated regulations pertaining to teacher class loads (see 8 NYCRR 100.2 [i]),” such a provision “does not exclude that subject from the scope of arbitration under the CBA,” explaining that “although Education Law §310 permits any aggrieved party to appeal by petition to the Commissioner of Education, that statute does not mandate a particular method of review and does not preclude submission of disputes concerning teacher class loads to arbitration.”

In addition to rejecting other arguments raised by the school district in support of its position, the court noted that Association “did not abandon its right to arbitrate the [instant] grievance by filing a notice of claim with the Public Employment Relations Board concerning an improper practice charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09723.htm

Reopening an appeal decided by the Commissioner of Education

Reopening an appeal decided by the Commissioner of Education

Application to reopen the Appeal of Michael P. Thomas, Commissioner of Education Decision #16,322

8 NYCRR §276.8 [of the Commissioner’s regulations] address the procedures for submitting an application to reopen a prior decision by the Commissioner. The rule provides that such an application is considered solely to the discretion of the Commissioner and such applications will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made. 

Significantly, a reopening “may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.”

The appeal that Thomas sought to have reopened had been dismissed as untimely. 

In his application for reopening, Thomas alleged that the Commissioner Steiner did not rule on his request for an order compelling the employer to cease certain actions. The Commissioner, however, said that as his appeal was found to be untimely, it was unnecessary address Thomas’ request in this regard.

Thomas, said the Commissioner, failed to demonstrated that the decision in his underlying appeal was rendered under a misapprehension of fact, nor has he presented any new and material evidence that was not available at the time the decision was made but was attempting to reargue the original application. However, the Commissioner explained, “It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening,” citing a number of earlier decisions including Application of Gillen, 50 Ed Dept Rep, Decision No. 16,112, and denied Thomas’ application to reopen the underlying appeal.

The Thomas decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16322.html

The Gillen decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16112.htm

Workers’ Compensation Benefits for injuries sustained in voluntary off-duty athletic event available if found to be a “work-connected”

Workers’ Compensation Benefits for injuries sustained in voluntary off-duty athletic event available if found to be a “work-connected”

Nichols v Hale Cr. ASACTC, 2012 NY Slip Op 00078, Appellate Division, Third Department

James A. Nichols, the Superintendent of Hale Creek Correctional Facility in Fulton County, was injured while coaching an employee volleyball team preparing to compete in the "Department of Correction Olympics."

Corrections and its insurer, the State Insurance Fund [SIF], controverted Nichols’ claim, arguing that he had not suffered the injury in the course of his employment.

The Workers’ Compensation Board ruled in Nichols favor and SIF appealed.

The Appellate Division affirmed the Board’s ruling. Although Workers' Compensation Law §10(1) provides that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee's work-related duties, in this instance the record indicated that Nichols “was given specific direction to improve staff morale, and his encouragement of employee participation in the Olympics and his active role in coaching the volleyball team were in furtherance of that edict.”

In addition, testimony by Nichols supervisor that “there is an expectation that superintendents be involved with as many facility-related events as possible,” said the court.

Accordingly, said the court, “we decline to disturb the Board's factual determination that [Nichols’] injury arose out of and in the course of his employment.”

In contrast, in Koch v Rockland Sheriff’s Department, 289 A.D.2d 865, Motion for leave to appeal denied, 98 N.Y.2d 601, the Appellate Division sustained the Workers' Compensation Board rejected Koch’s application for benefits after determining that the injury "was not job related.

Koch, said the Board, suffered his injury while participating in a union-sponsored softball game between employees of the Sheriff's Department's correction division and employees of its patrol division.

Where, as here, said the Appellate Division, an employee is injured in a voluntary athletic activity that is not part of the employee's work-related duties, §10.1 of the Workers’ Compensation Law bars an award of workers' compensation benefits unless one of three conditions is met.

The three exceptions: The employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in such activity or (c) otherwise sponsors the activity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00078.htm

Declining to avail one’s self of an administrative remedy triggers the running of the statute of limitations to challenge the administrative decision

Declining to avail one’s self of an administrative remedy triggers the running of the statute of limitations to challenge the administrative decision
Goldstein v Teachers' Retirement Sys. of the City of New York, 89 AD3d 501

The New York City Department of Education advised Leslie Goldstein that the New York City Teachers’ Retirement System had improperly included prior employment in calculating his service credit with the New York City Department of Education.

Although Goldstein was offered an administrative remedy that would have allowed him to obtain the service credit he wished, he declined that remedy. The Appellate Division ruled that the four-month Statute of Limitations to challenge the calculation of his service credit commenced running on the date he declined the administrative remedy offered.

The Appellate Division noted that when the Retirement System ascertained that Goldstein actually had less service credit that it preliminary evaluation indicated, it was required by Education Law §525 to correct the error.

Further, said the court, “The doctrine of estoppel may not be applied to prevent [the Retirement System] from doing so,” citing E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369 and Matter of Scheurer v New York City Employees' Retirement Sys., 223 AD2d 379

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07925.htm

Resignation in anticipation of being served with disciplinary charges

Resignation in anticipation of being served with disciplinary charges

Claim of Cohen (Town of Brookhaven--Commissioner of Labor), 2012 NY Slip Op 00068, Appellate Division, Third Department

The decision explores the eligibility of an individual who resigned from his position when threatened with disciplinary action.

Citing Matter of Jimenez [New York County Dist. Attorney's Off. —Commissioner of Labor], 20 AD3d 843, the Appellate Division said that "A claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct."

In this instance Brookhaven was preparing to file Civil Service Law §75 disciplinary charges against the employee unless some type of negotiated resolution was agreed upon or the employee resigned from the position.*

The employee resigned and applied for unemployment insurance benefits claiming that he felt he had no option but to leave his employment since disciplinary charges were imminent, that he did not believe he could prevail at a hearing and that he could lose his medical benefits.

The Unemployment Insurance Appeal Board ruled that employee was entitled to receive benefits provided that he did not engage in disqualifying misconduct and remanded the matter to the Unemployment Insurance Administrative Law Judge for “a further hearing on the misconduct issue.”** 

The Appellate Division sustained the Board's determination. Although the employer never actually filed before the employee resigned, the court ruled that “under the circumstances presented,” this does not establish that [the employee] voluntarily left his employment without good cause and thus was ineligible for unemployment insurance benefits."

* In some instances an employee threatened with disciplinary action unless he or she resigns does, in fact resign only to subsequently attempt to rescind his or her resignation claiming that it was coerced. In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals sustained the appointing authority’s refusal to allow Rychlick to withdraw his resignation that Rychlick claimed had been obtained under duress -- the threat of disciplinary action unless he resigned -- ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

** 4 NYCRR 5.3, which applies to officers and employees of the State as an employer, provides that in the event charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation. Many local civil service commissions have adopted a similar rule with respect to public employees under their respective jurisdictions.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00068.htm

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Dep’t of Transportation v. Pierrteeisme (in PDF), OATH Index No. 2112/11 (Oct. 3, 2011), adopted, Comm’r Dec. (Oct. 24, 2011)

A New York City assistant highway repairer was arrested. Unable to make bail, he was absent from work for 10 months.  

The New York City Department of Transportation filed disciplinary charges against the individual, alleging excessive absenteeism and absence without authorization, as well as conduct prejudicial to good order based on the arrest. 

OATH Administrative Law Judge Faye Lewis sustained the absenteeism charges on an incompetence theory, finding that his lengthy absence, with no showing he would return soon, rendered him incompetent to perform the duties of his position. 

Judge Lewis, however, recommended dismissal of the “conduct prejudicial to good order based on the arrest” charge, noting that an arrest, without any evidence of the underlying misconduct, amounts to an accusation only. 

As to the penalty to be imposed based on the employee’s being found guilty of the absenteeism, Judge Lewis recommended the individual be terminated from employment.

Concerning Practice and Procedure before the NYC Office of Administrative Trials and Hearings

Concerning Practice and Procedure before the NYC Office of Administrative Trials and Hearings

Health and Hospitals Corp. v Chime, OATH Index #2969/09


OATH Administrative Law Judge Tynia D. Richard denied a request made by a former City hospital employee to reopen her disciplinary case and vacate a stipulation of settlement that she entered into in 2009

The settlement, the terms of which were confirmed on the record by the individual, included her agreement to resign from her position.

Although represented by counsel at the time of settlement, the employee claimed she was coerced into the agreement.

ALJ Richard found that the stipulation concluded the matter and that OATH no longer had jurisdiction. Moreover, Judge Richard said that OATH must receive a designation from appointing authority to hear the matter, and the hospital did not consent to reopen the case.

As OATH is not a “court” under state law with general jurisdiction to hear matters brought by individuals, the Law Judge noted that “A challenge to the validity of an executed stipulation is a contract claim more appropriately asserted in state court.”