Custodian-helpers hired by Custodian-engineers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law

Custodian-helpers hired by Custodian-enginers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law
Brown v Liu, 2012 NY Slip Op 03567, Appellate Division, First Department

Supreme Court dismissed an Article 78 petition seeking an investigation of wage complaints filed by certain members of Local 94 serving as "custodian-helpers" employed New York City Department of Education [DOE] "custodian-engineers.". The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that as the union members involved served as “custodian-helpers,” they were not entitled to the prevailing wage and benefits protection under Labor Law Article 9.* Such is the case because under the "indirect system" of custodial care, the DOE employs custodian-engineers in accordance with civil service regulations. These custodian-engineers, in turn, may employ custodian-helpers.

Indeed, the relevant collective bargaining agreement for the custodian-engineers' provides that they are employees of the DOE. 

Thus, said the court, the custodian-engineers are not "contractors" and the custodian-helpers employed by them are not "building service employees" of DOE’s custodian-engineers as those terms are defined in Labor Law §230.

* Article 9 of the Labor Law is captioned “Prevailing Wage For Building Service Employees.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03567.htm

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required
Patrolmen's Benevolent Assn. of City of Long Beach, Inc. v City of Long Beach, 57 AD3d 499

This litigation involved efforts by the Patrolmen's Benevolent Association [PBA] to enforce three stipulations executed by the parties in settlement of three grievances initiated by the PBA pursuant to the terms of its collective bargaining agreement with the City of Long Beach. The three grievances initiated by the PBA on behalf of its members concerned sick leave retirement computations, night differential pay calculations, and a disciplinary action that had been brought against 17 of its members.

In response to the PBA’s inquiry concerning the City's compliance with the terms of one of the settlement agreements, the City indicated that it regarded all three underlying grievances as still pending. The reason offered by the City in support of its views: The City Council had never approved the settlements and thus they were not binding on the parties.

The PBA, seeking to enforce the terms of the stipulations and agreements, sued and won a decision by Supreme Court holding the stipulations and agreements were legally binding and enforceable as between the parties. The City was directed by Supreme Court to abide by the terms of the settlement agreements. Long Beach appealed, only to have the Appellate Division affirm the Supreme Court’s ruling.

As to the City’s claim that approval by the City Council was required to bind the parties, the Appellate Division said that the Court of Appeals in Board of Education for City School District of City of Buffalo v Buffalo Teachers Federation, 89 NY2d 370, made it clear that “the Taylor Law does not by its terms 'vary or extend the instances in which legislative approval is necessary and does not create a necessity for action by a legislative body where it does not otherwise exist.'" Here, said the court, Long Beach "has not identified any further legislative action that it must perform under the pertinent statutes" as a condition to the approval of the three stipulations settling the PBA’s grievances.

The Appellate Division also noted the past practice of the parties of executing similar stipulations resolving PBA grievances by the City Manager and the President of the PBA without any need for City Council ratification.

Further, the decision notes, the stipulations and agreements involved do not alter or amend the language of the controlling collective bargaining agreement so as to trigger the need for legislative approval. Rather, said the court, “they represented agreements between the parties on how they would interpret certain CBA provisions.” Therefore, “no City Council approval was needed in order for the stipulations and agreements to bind the parties.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09573.htm

Public employees and the First Amendment right to free speech

Public employees and the First Amendment right to free speech
Thomas v City of Blanchard, 548 F.3d 1317

In considering a public employee’s claim that his or her First Amendment right to free speech has been compromised by his or her public employer, courts distinguish between the employee’s speech in terms of the vindication of a personal interest and the vindication of a public interest.

Another arena in which an employee may contend that his or her employer’s actions are violative of the employee’s free speech are tested in terms of whether the speech concerned the employee’s official duties or a public interest.

The latter was the issue in the Thomas case: Was Thomas’s report to the Oklahoma State Bureau of Investigation (OSBI) made pursuant to his professional duties and therefore outside the scope of First Amendment protections within the meaning of Garcetti v Ceballos, 547 U.S. 410, or was his speech a matter of public interest and thus protected by the First Amendment?

Ira Thomas was fired from his job as building code inspector for the City of Blanchard, Oklahoma, after he discovered a signed and completed certificate of occupancy for a home constructed by a local builder — who was also the mayor — in the City Clerk’s office although Thomas had neither made the final inspection of the home nor approved issuance of the certificate.

In the words of the Tenth Circuit, “Suspecting illegality, Mr. Thomas responded forcefully (and maybe even inappropriately; that is a disputed issue) by storming into a meeting to denounce the certificate, shouting at the City Clerk, threatening to report the matter to the OSBI and eventually following through on the threat.”

Subsequently terminated from his position, Thomas sued the City and various city officials, including the mayor, claiming his discharge was in retaliation for his exercising his right to free speech — primarily, his reporting the matter to the OSBI — and therefore in violation of the Free Speech Clause of the First Amendment.

The Circuit Court decided that Thomas’s search was not made pursuant to his professional duties and thus was constitutionally protected. Citing its decision in Casey v. West Las Vegas Independent School District, 473 F.3d 1323, the court concluded that ala Casey, "Thomas was not satisfied that the city’s officials would report the fraud to the authorities, so he 'took his grievance elsewhere' — that is, to the OSBI.”

The court then considered a number of additional relevant issues including (1) whether the government’s interest outweighed the employee’s free speech rights and (2) whether the speech was a motivating factor in the discharge.

As to whether Thomas’s speech was a matter of public concern, the Circuit Court of Appeals concluded that although this issue was raised for the first time in this appeal, speech about possible illegality or pressure by the mayor would count as a matter of public concern.

Addressing whether city’s interest as employer in promoting the efficiency of the services it performs outweighs the employee’s interest in his speech, the court said that for the purposes of this test, the question is not whether the plaintiff’s speech was accompanied by disruptive behavior or made in a disruptive manner, but whether the government’s legitimate interests provide a sufficient justification for controlling Thomas’s message.

The decision also addresses other significant issues concerning the rights and limitations concerning the exercise of “free speech” by a public employee.

The full text of the decision is posted on the Internet at:
http://www.ca10.uscourts.gov/opinions/07/07-6197.pdf

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

A retired Chief of Department is entitled to a retirement allowance, consisting of both an annuity and a pension. In this instance the retired Chief of Department of the New York City Police Department, challenged Board of Trustees' interpretation of Administrative Code §13-249, claiming that the plain language of the statute entitled him to receive a pension equal to two-thirds of his salary unreduced by any optional modification.  

Although Supreme Court granting the retiree’s petition holding that that New York City Police Department’s failure to apply the plain language of Administrative Code of City of New York §13-249 to the calculation of retiree's retirement allowance was arbitrary, capricious and contrary to law, the Appellate Division unanimously reversed the ruling “on the law” and dismissed proceeding brought pursuant to CPLR Article 78.

Administrative Code §13-249 provides that a retired Chief of Department is entitled to a retirement allowance consisting of both an annuity and a pension that will effectively make the retirement allowance equal to two-thirds of the retiree's salary.*

The Appellate Division said that the plain language of §13-249, states that a retiring Chief of Department's "accumulated deductions," are not subject to "any decrease resulting from withdrawals, loans, optional modifications . . .." The statute, however, is silent with respect to computations of the "pension" portion of the retirement allowance.

Accordingly, said the court, a retiring Chief's receiving the full two-thirds retirement allowance may be affected by his or her choice of options under Administrative Code §13-261 whereby “if any retiree exercises an option to designate a beneficiary to receive a portion of his retirement allowance, then his retirement allowance will be reduced accordingly.”

The Appellate Division then held that “no fair reading of Administrative Code §13-249 … leads to the conclusion that the ‘pension’ portion of [retiring Chief’s] retirement allowance would not be subject to a reduction based on the selection of an option in which a beneficiary is designated under Administrative Code §13-261.”

* Section 13-249 also provides instruction as to the computation of the "annuity portion" of the retirement allowance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03723.htm