Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect

Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect
In the Matter of the Arbitration between Livingston County and the Livingston County Civil Serv. Employees Assn., Inc., Local 1000, 2012 NY Slip Op 08985, Appellate Division, Fourth Department

The County and Local 1000 of the Civil Service Employees Association, Inc. were involved in a grievance that was at the various steps set out in the CBA’s contract grievance procedure article. Ultimately the County denied the grievance by a written decision dated October 4, 2011. CSEA then advised the County by a letter dated October 27, 2011 that it intended to submit the grievance to arbitration. The County received CSEA’s letter on October 28, 2011.

The critical provision in the CBA central to this litigation required "[c]ompliance with the time limits for submitting a notice of intent to arbitrate [and such compliance] shall be a condition precedent to arbitration". The CBA also included a provision stating that "Failure to submit a notice of intent to submit a grievance to arbitration . . . shall thus bar the grievance from proceeding to arbitration."

The time limits set out in the CBA required that the party demanding arbitration must notify the other party of its intention to submit the matter to arbitration “no later than 15 working days after a written decision was issued at the second step of the grievance process.”

Livingston County asked Supreme Court to stay arbitration, contending that CSEA’s demand to submit the grievance to arbitration was untimely as it had not been notified of CSEA’s intent to do so within 15 working days of date of its denial of the grievance.

Supreme Court denied the County’s petition; the Appellate Division unanimously reversed the lower court ruling “on the law.”

The Appellate Division explained that although the CBA between the parties sets out a “broad arbitration agreement,” it also contains an express provision establishing a condition precedent to submitting the matter to arbitration and CSEA had not complied with this condition precedent..

The court also noted that where such a condition precedent is expressly made part of the CBA, the issue of compliance with the condition is for the court to decide in the first instance.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08985.htm

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination

Denhoff v Mamaroneck Union Free Sch. Dist., 2012 NY Slip Op 08729, Appellate Division, Second Department

A §3020-a arbitrator sustained disciplinary charges filed against a guidance counselor and held that the school district had just cause to terminate her from her position. Supreme Court dismissed the guidance counselor’s petition and the Appellate Division affirmed the lower court’s ruling.

The arbitrator had found the guidance counselor guilty of 27 specifications of misconduct set out in 14 charges related to the guidance counselor’s conduct over the course of three years that involved a pattern of "harassing, demeaning, and continuous bullying of her less senior colleagues, as well as efforts to sabotage the ability of certain colleagues to gain tenure."

The Appellate Division, noting that Education Law §3020-a(5) limits judicial review of an arbitrator's determination, said that where, as here, parties are subject to compulsory arbitration, the award must not only satisfy the provisions set out CPLR §7511[b][1][i], [iii], [iv,] the award must satisfy yet an additional layer of judicial scrutiny, namely having evidentiary support and neither being arbitrary nor capricious. Further, the court said that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists," citing Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012.

On appeal the guidance counselor challenged the arbitrator's finding her guilty of several of the charges sustained against her that the court said were raised for the first time on appeal. Accordingly, an appeal of those elements of the award were not properly before the court. 

As to those charges and specifications properly before the Appellate Division, the court found that the award was not arbitrary and capricious nor irrational, and that there was evidentiary support for the arbitrator's finding of guilt as to each of the charges.

In particular, the Appellate Division commented that the arbitrator “engaged in a thorough analysis of the circumstances, evaluated the witnesses' credibility, and arrived at a reasoned conclusion that termination of the [guidance counselor's] employment was an appropriate penalty.” In other words, the Appellate Division found that “[I]t was rational for the arbitrator to find that the guidance counselor’s actions warranted termination under the circumstances of this case.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08729.htm

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Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Storman v New York City Dept. of Educ., 2013 NY Slip Op 50007(U), Supreme Court, New York County

A teacher employed by the NYC Department of Education for approximately 30 years challenged his receiving an unsatisfactory rating as a result of allegations of sexual misconduct and corporal punishment made by a student. The teacher contended that the student's allegations were made in retaliation for his "verbally reprimanding a student."

Ultimately Supreme Court granted the teacher’s petition to annul the unsatisfactory rating, explaining "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for DOE and teacher's union, the United Federation of Teachers (UFT), to take the appropriate steps to remedy the consequences of the underlying false allegations so that teacher would be properly compensated and his employment status restored.

The unsatisfactory rating was annulled by DOE but DOE did not take any steps to compensate the teacher or to remedy his employment situation. The teacher then asked the court to hold DOE in contempt. Supreme Court did hold DOE in contempt for its “willful and contumacious failure to comply with the Judgment,” but this determination was vacated by the Appellate Division, which found that the Contempt Order was based on an earlier Judgment that did not contain a "clear and unequivocal mandate."

In response to the Appellate Division’s granting the teacher leave to have Supreme Court clarify its Judgment by issuing was it termed "a clear and unequivocal mandate" to DOE. Supreme Court said that “In order to finally put an end to this unfortunate saga,” which began in 2004, this Court will be perfectly clear and unequivocal about what DOE must do and by when it must be done. 

By April 5, 2013, said the court, DOE shall do the following:

1. remove all references to the underlying false accusations from the teacher’s personnel file; and

2. restore back pay, with interest, that the teacher did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits.

The court also directed that in the event a dispute arises between the parties before April 13, 2013, “the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to the teacher, the teacher is granted leave to move to have such calculation referred to a Special Referee to hear and report.”

Finally, said the court, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with the teacher about back pay, the teacher has leave to move for contempt, as DOE “can no longer maintain that its mandate is not clear and unequivocal.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_50007.htm

Collective bargaining agreements relied upon did not obligate the employer to maintain a retiree’s health insurance coverage at the level in place at the time of his or her retirement

Collective bargaining agreements relied upon did not obligate the employer to maintain a retiree’s health insurance coverage at the level in place at the time of his or her retirement

Kolbe v Tibbetts, 2012 NY Slip Op 08899, Appellate Division, Fourth Department

Certain retirees of the Newfane Central School District sued the District alleging that it had breached the terms of various collective bargaining agreements [CBA] with respect to their health insurance benefits in retirement. The retirees contended that their health insurance benefits were governed by each collective bargaining agreement (CBA) that was in effect at the time each plaintiff retired and that those benefits could not be changed or modified.

Each CBA in effect at the time of the retirees' respective retirements set forth a nominal co-pay for prescriptions in accordance with the health care plan that was in effect at that time. In December 2009, each retiree was notified that, pursuant to the CBA effective January 1, 2010, the co-pay for prescriptions would be significantly increased. Plaintiff-retirees alleged that they were not obligated to pay the higher co-pay but, rather, were obligated to pay only the co-pay rate that was in effect at the time of their respective retirements.

Supreme Court granted the retirees’ motion seeking summary judgment. The Appellate Division decided otherwise, Justices Lindley and Whalen dissenting, and ruled that Newfane was not obligated to maintain health insurance coverage equivalent to that in effect at the time each plaintiff retiree retired with respect to each such individual.

The Appellate Division said that the language at issue was set out in each relevant CBA and provided, in pertinent part, "[t]he coverage provided shall be the coverage which is in effect for the unit at such time as it is provided to the employee." In subsequent CBAs, said the court, the language at issue stated that "[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires."

The CBAs further provided that retired employees shall be eligible to "continue group health insurance" upon the payment of a monthly premium to the District.”

The Appellate Division said that Supreme Court erred in holding that the language of the respective CBAs provided that the prescription co-pay amount could not be altered in view of the several CBAs providing that unused sick leave could be used to pay for health care coverage.

The court pointed out that “The unambiguous language … provides that, at the time of his or her retirement, the retiree is entitled to the same coverage that is provided to the bargaining unit.” The language, said the court, does not specify that an equivalent level of coverage will continue during retirement. In other words, said the court, “the respective CBAs do not provide that the level of health coverage will not be reduced or that the annual cost will not increase.”

Finding that the benefits for represented employees were “likewise reduced,” the Appellate Division concluded that the School District complied with the statutory requirement that they not reduce the retirees’ coverage below the level of coverage provided to active employees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08899.htm

Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer

Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer

Appeal of Ford from actions of the Board of Education of the City School District of the City of Troy, et. al., Decisions of the Commissioner of Education, Decision #16,443

The Commissioner sustained Tracy Ford’s challenge to his termination by the City School District of the City of Troy [Board] in part.

Ford, a certified School Administrator and Supervisor and School District Leader, was appointed to a position in the K-12 administrative tenure area as an Elementary School Principal effective September 17, 2007. This appointment was subject to Ford’s satisfactory completion of a probationary period and he was subsequently advised that he had been granted tenure in the title effective September 1, 2010.

On May 20, 2011, the Board notified Ford that his position was abolished and as he was the least senior employee in his tenure area he would be terminated effective June 30, 2011. Ford appealed, contending that he was improperly tenured in the elementary principal tenure area instead of the K-12 administrator tenure area.  Accordingly, Ford argued, he was improperly terminated because he was not the least senior administrator in the K-12 administrative tenure area or, alternatively, that he was entitled to fill a vacant position in the K-12 administrative tenure area when his position was abolished. 

The Board then adopted a resolution rescinding its action terminating Ford and “clarified” his tenure area as Administrator K-12. It then reassigned Ford to School 16, effective August 26, 2011.

In rebuttal to Ford’s seeking to have the Board’s actions excessing him declared null and void and reinstatement to an administrative position within the district, with full seniority rights, benefits and pay retroactive to June 30, 2011, the district argued that Ford failed to meet his burden of demonstrating a clear legal right to the relief he requested and that the petition must be dismissed as moot and untimely.

In support of its argument, the District pointed to its September 7, 2011 board resolution rescinded its action terminating Ford and his reinstatement to a principal position in the K-12 administrative tenure area.

Noting that an appeal will only decide “matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” the Commissioner said that to the extent that Ford challenged his termination in June 2011 or requests reinstatement to a position in the K-12 administrative tenure area, these claims are moot.”

However, said the Commissioner, Ford’s request for relief also included seniority credit, benefits and pay retroactive to June 30, 2011, contending that he had not been paid and/or received benefits and/or accrued seniority credit from June 30, 2011 through August 26, 2011. This aspect of Ford’s appeal was not rendered moot by the Board’s action.

The Commissioner said that the Board resolution clearly rescinded its action to terminate Ford in June 2011. However, said the Commissioner, as the Board continued Ford’s employment as an elementary principal in the district from June 30, 2011 until he was reassigned to School 16 on August 26, 2011, he is therefore entitled to receive salary, benefits and any seniority credits accrued during this time period.

Under the circumstances the Commissioner declined to dismiss this aspect of Ford’s claim as untimely and ordered the Board to reinstate him with back pay, benefits and seniority credit retroactive to June 30, 2011.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16443.html

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area
Thorenz v Board of Educ. of The Monticello Cent. Sch. Dist., 2012 NY Slip Op 09135, Appellate Division, Third Department

A teacher was granted tenure by the School Board in the special subject tenure area "In-School Suspension" and continued serving in that capacity until 2010 when she was notified that “the Board determined that it was ‘necessary to eliminate a teaching position in the In-School Suspension tenure area’ and that she was being terminated based upon her seniority status within that tenure area”

However, "In-School Suspension" was not an authorized special subject tenure area.

The teacher sued the school district contending that her separation was unlawful and that she should be reinstated to a position teaching in the physical education and recreation tenure area, an area in which she held a teaching certificate. 

Supreme Court granted the School Board's motion for summary judgment in part, dismissing the petition but as the teacher had been appointed by the Board to a nonexistent tenure area, Supreme Court then remitted the matter to the Board and directed it to reclassify the teacher "into an existing tenure area position.”

Both the teacher and the School Board appealed the decision.

Affirming the Supreme Court’s ruling, the Appellate Division said that the parties conceded that the teacher did not "devote a substantial portion of [her] time to instruction in . . . physical education" and therefore she cannot be deemed to have served in that special subject tenure area unless she falls within the exception created by 8 NYCRR 30-1.2 (b) (2).

8 NYCRR 30-1.2 (b) (2) provides that a professional educator who was appointed to an unauthorized tenure area prior to May 1, 2009 will be deemed to have been appointed to the tenure area for which the teacher holds a certification if the teacher was appointed for the performance of duties in instructional support services. However, the teacher’s duties, as self-described and as described in her teacher evaluations and by her principal, centered exclusively upon supervising students assigned to in-school suspension and working with other staff members concerning those students.

Thus, concluded the Appellate Division, the Board was correct in holding that the duties performed by the educator did not qualify as "instructional support services" within the meaning of the regulation and she was not legally entitled to an appointment to a position in the physical education and recreation tenure area.

However, said the court, it agreed with Supreme Court that, under the circumstances of this case, remittal is required so that the Board can reclassify the teacher into an accepted tenure area and thereafter determine seniority pursuant to Education Law §2510(2).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09135.htm

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Employees “demoted” to a lower grade position as a result of their exercise of their “displacement rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Employees “demoted” to a lower grade position as a result of their exercise of their “displacement   rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Yackel v City of Rochester, 2012 NY Slip Op 09253, Appellate Division, Fourth Department

The Rochester Firefighters Association file an Article 78 petition challenging an administrative order issued by the Fire Chief of the City of Rochester Fire Department that resulted in the "demotion" of a number of Fire Department battalion chiefs to the rank of captain.

These demotions were the “fall-out” resulting from the abolition of battalion chief positions* as part of budget cuts made by the City of Rochester and the decision of the individual battalion chiefs to exercise their "displacement rights" pursuant to Civil Service Law §80.6.

The Appellate Division said that Supreme Court “properly granted [the City’s] motion to dismiss the Association’s petition, rejecting the Association’s argument that the Fire Chief acted in excess of his authority as the appointing authority for City of Rochester Fire Department when he issued the challenged administrative order.

The court explained that although §8B-4 of the City Charter provided that that "members of the Fire Department . . . hold their respective offices during good behavior or until by age or disease they become personally incapacitated to discharge their duties" did not truncate the "undisputed management prerogative of the [City], as an employer, to abolish positions in the competitive class civil service in the interest of economy."**

The Appellate Division also affirmed Supreme Court’s rejection of the Association’s contention that, as a matter of procedural due process, the individual Battalion Chiefs that exercised their “displacement rights” to an appointment is a lower grade position were entitled to a hearing prior to their "demotions" commenting that the Chief’s action was not based upon any question involving the conduct or the competency of the Battalion Chiefs involved but, rather, was based on their seniority and the mandates of Civil Service Law §§80 and 81.
 

* There must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

** CSL §80 controls with respect to the rights of employees in the competitive class in the event of a layoff; §80-a controls with respect to employees in State service in positions in the non-competitive class. See §45 of the Civil Service Law with respect to determining seniority for the purposes of a layoff involving employees continued in public service following a “take-over” of a private institution or enterprise by a government entity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09253.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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