Expulsion from a membership organization

Expulsion from a membership organization
Dormer v Suffolk County Police Benevolent Assn., Inc., 2012 NY Slip Op 03979, Appellate Division, Second Department

The then Police Commissioner of Suffolk County and the then Deputy Police Commissioner of Suffolk County sued the Suffolk County Police Benevolent Association, Inc., [PBA] and the Superior Officers Association of the Police Department of the County of Suffolk, [SOA] contending that their expulsions from these organizations was "illegal and improper."

Both the Commissioner and the Deputy Commission contended that they were expelled from the PBA and the SOA in retaliation for following official directives which required them to transfer responsibility for patrolling certain roadways on Long Island from the Suffolk County Police Department to the Office of the Sheriff, claiming that their expulsion had an adverse effect on them due to the loss of a life insurance policy. They sought a court order reinstating their membership “with full benefits.”

As their petitions were dismissed by Supreme Court as untimely, which ruling was affirmed by the Appellate Division, the merits of their claims were never addressed by the courts.

However, assuming, but not deciding, that the PBA and the SOA were recognized or certified for purposes of collective bargaining with the Suffolk County Police Department, as both the Commissioner and the Deputy Commissioner were expelled from their “membership” in the PBA and the SOA, presumably neither the Commissioner nor the Deputy Commissioner positions had been designated managerial or confidential within the meaning of §214 of the Civil Service Law [the Taylor Law].

§214 provides, in pertinent part, that “ No managerial or confidential employee, as determined pursuant to subdivision seven of section two hundred one of this article, shall hold office in or be a member of any employee organization which is or seeks to become pursuant to this article the certified or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.”

§201.7(a) of the Civil Service Law provides, in pertinent part, that “The term ‘public employee’ means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include for the purposes of any provision of this article … persons who may reasonably be designated from time to time as managerial or confidential.”

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The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03979.htm

Filing exceptions to a PERB administrative law judge’s determination

Filing exceptions to a PERB administrative law judge’s determination

Matter of County of Ontario and Ontario County Sheriff [Joint employers] PERB decision U-30353

The Board rejected the Joint Employer’s contention that it had a right to file exceptions to an ALJ’s interim decision denying its motion to dismiss a charge, without the necessity of seeking leave to file exceptions from the Board pursuant to § 212.4(h) of the Rules of Procedure (Rules).

The Board reached its conclusion based upon well-established precedent requiring a party to seek permission to file exceptions from interim decisions and rulings pursuant to §212.4(h) of the Rules.

Nevertheless, the Board treated the Joint Employer’s pleading as a motion for leave to file exceptions and concluded that the Joint Employer failed to demonstrate extraordinary circumstances.

Pursuant to §205.5(d) of the Public Employees’ Fair Employment Act (Act), PERB has exclusive jurisdiction to determine whether an employer has engaged in an improper practice in violation of §209-a.1 of the Act. The fact that a notice of claim was served asserting an alternative motivational theory underlying the alleged retaliation did not deprive PERB of jurisdiction to hear the pending charge, nor did it constitute a waiver of jurisdiction.

The Board noted, however, that although the pursuit of ancillary litigation may not deprive of PERB of jurisdiction or constitute a waiver, the results of such litigation may, in certain circumstances, form the basis for a collateral estoppel defense to a charge pending at PERB. 

Practice Tip noted by PERB staff:

Practitioners are reminded that under Board precedent, motions for leave to file exceptions are very rarely granted due to the strict standard requiring a movant to demonstrate extraordinary circumstances. This high standard is applied by the Board based upon the view that it is far more efficient to await the final disposition of the merits of a charge before examining interim determinations and to avoid unnecessary delays in the processing of improper practice charges. 

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