Court will not assume that the arbitrator will be unable to fashion an appropriate remedy

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy
Board of Education of City School Dist. of City of Buffalo, 53 AD3d 1071

The Buffalo Fiscal Stability Authority (BFSA) imposed a wage freeze with respect to public employees of the City of Buffalo, including employees of the Buffalo City School District. In accordance with the freeze, the District did not pay wage increases mandated by the parties' collective bargaining agreement (CBA).

The unions initially sued in federal court challenging the constitutionality of the wage freeze under the Contracts and Takings Clauses of the United States Constitution but were unsuccessful [Buffalo Teachers Fedn. v Tobe, 446 F Supp 2d 134, affd 464 F3d 362, cert denied, 127 S Ct 2133].

The unions then filed a demand for arbitration and the District filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration.

The Appellate Division affirmed Supreme Court’s dismissal of the District’s petition, rejecting its argument that “any remedy awarded in the arbitration would violate public policy and thus that the grievance is not subject to arbitration.” The court said while a court may stay arbitration if it "examines an arbitration agreement . . . on its face and concludes that the granting of any relief would violate public policy" it would not “presume in advance of arbitration that the arbitrator will fashion a remedy that will violate public policy.”

Neither was the Appellate Division persuaded by the District’s claim that having litigated the issue in federal court, the union’s demand for arbitration was improper as the issue had already be the subject of a judicial review. It noted that the federal litigation was limited to constitutional challenges to the wage freeze, while the grievance filed by the union concerns is whether there was a violation of the CBA between the parties.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/court-will-not-assume-that-arbitrator.html

National security trumps federal employee’s civil service protection

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3207.pdf

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA)

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA) 

Miller v Clinton, United States Court of Appeals, District of Columbia Circuit, Docket #10-5405

The United States Department of State terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old.*The Department contended that it was free to terminate employees like Miller on account of their age as a matter of law.**

Noting that “the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex, the Circuit Court of Appeals, Circuit Judge Kavanaugh dissenting. reversed the district court’s dismissal of Miller’s petition. The court said that it found nothing in the Basic Authorities Act, 22 U.S.C. 2669(c)2(c), relied upon by the State Department for its action that abrogated the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.***

Noting that the Supreme Court has recognized that the ADEA’s sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age,” citing Lorillard v Pons, 434 U.S. 575, the Circuit Court said that “The Act’s protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector … means, among other things, that federal employees cannot be subjected to mandatory retirement at any age.” In other words, said the court, there is “no permissible [age] cap” for federal employment.

The consequences of the State Department’s argument, said the Circuit Court, cannot be limited to the ADEA alone as were it to accept the Department’s contention that §2669(c) creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.3 as it could see no way to distinguish the latter two statutes from the ADEA.

The Circuit Court remanded the case to the district court “for further proceedings.”

* The ADEA [see 29 USC 14, §631(c)(1)] sets out an "age exception" for “bona fideexecutives or high policymakers” wherein it provides that “Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000” [§29 U.S.C. 14, §631(c)(1)]. 

** The State Department contended that the statute under which Miller was hired, §2(c) of the Basic Authorities Act, 22 U.S.C. §2669(c), permitted the Department to exempt Miller from the protections of the ADEA

*** The court explained that “Congress would not have used ambiguous language had it intended to override the ADEA is confirmed by considering the language that Congress did use when it intended to carve out exceptions from that statute … when Congress had such an intention, it made that intention clear.”

The decision is posted on the Internet at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/B65D15DDE4EE579F85257A53004E90E1/$file/10-5405-1387823.pdf

Scope of arbitration

Scope of arbitration
Richfield Springs CSD v Allen, 270 A.D.2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the "third party?"

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association's basic objection: there was a change of carriers responsible for administering the BOCES Plan's coverage for prescription drugs. The Association's basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES's existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given "reimbursement for any financial loss" that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association's grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.

Initially the Association's motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court's finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the "BOCES Plan" administrators.

The Appellate Division reversed. The court decided that the Association's grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court¸ citing Liverpool Central School, 42 NY2d 509, explained that "[i]t is settled law that grievances arising under public sector parties' collective bargaining agreements are subject to arbitration where both arbitration of the subject in dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration."

This view was amplified by the Court of Appeals in a subsequent ruling, Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, the Appellate Division first applied the "Liverpool test" and concluded that contract arbitration clause in the contract covered "the subject the dispute." It then applied the Watertown test -- "did the parties in fact agree to arbitrate this particular grievance." It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement "specifically included" a clause stating that prescription drug coverage was to be provided by "Prescription Card Services (PCS)." Further, said the court, "the Agreement expressly provided that "[a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties."

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association's consent, this supported the claim of an "alleged violation" of the Agreement that the parties clearly and unequivocally agreed to arbitrate.

What about the district's argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan's Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association's grievance was arbitrable and "the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator."

In another case involving the implementation of a contract arbitration procedure, Wayne Finger Lakes BOCES v Keller, decided by the Appellate Division, Fourth Department on February 16, 2000, the court granted Keller's motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES's scheduling of a workday prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as "a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement."

The court agreed with the Association that parties agreed "`by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.'"

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. (268 AD2d 523 [2000], appeal dismissed95 NY2d 790 [2000], lv denied 95 NY2d 761 [2000]), a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific "religious holiday" provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district's refusal to implement the contract clause was not subject to arbitration under the contract's grievance procedure.

The text of the decision is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/scope-of-arbitration.html

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a
Robert Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722

The Kiryas Joel Union Free School District and the Board of Education of the Kiryas Joel Union Free School District terminated a teacher from his position as a tenured teacher with the district. 

The teacher sued and Supreme Court annulled the district’s action and directed that the teacher be reinstated to his position retroactive to the date of his termination "with an award of back pay, interest, and such other and further benefits as would have accrued to him but for his unlawful termination of employment." The Appellate Division affirmed the lower court’s ruling.

The court pointed out that a tenured teacher was entitled to the procedural protections set forth in Education Law §3020-a.

The Appellate Division summarized the procedural elements as follows: Prior to any disciplinary action being taken against a teacher, all charges must be submitted in writing and filed with the clerk or secretary of the school district (Education Law § 3020-a[1]); then the employing board of education, in executive session, must vote as to whether there is probable cause for the charges (Education Law § 3020-a[2]); and if the board of education's determination is affirmative, a written statement specifying the charges in detail and outlining the employee's rights, including his right to a hearing, shall be immediately forwarded to that employee (Education Law § 3020-a[2]).

In contrast, the court noted that a tenured teacher may enter into a settlement providing for his or her voluntary resignation and forfeiture of protections pursuant to Education Law §3020-a only if that settlement is shown to have been voluntary and noncoerced.

Here, however, the Appellate Division said that “the evidence did not establish that the [the teacher’s] purported waiver of his rights under Education Law § 3020-a was voluntary and noncoerced.”

As the Kiryas Joel did not prefer charges or hold a hearing pursuant to Education Law § 3020-a, the Supreme Court properly determined that the appellants' actions were undertaken in violation of lawful procedure and was correct in granting the teacher’s petition and annulling Kiryas Joel’s terminating his employment.

The Appellate Division then remitted the matter to Supreme Court for the purpose of determining the amount due the teacher but also said that the “award shall include an offset for the amount of [the teacher’s] earnings from other employment since his termination by the appellants and for the amount of unemployment benefits received by the petitioner during that period.”

NYPPL Comment:On the issue of coercion in connection with an appointing authority’s threatening disciplinary action if the employee does not resign from his or her position, the Court of Appeals has held that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges -- did not constitute coercion so as to make the resignation involuntary [Rychlick v Coughlin, 63 NY2d 643].

The decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/terminated-teacher-is-reinstated-with.html

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity**was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/