Interest arbitration held to contravene public policy insofar as a public entity's being bound to nonmandatory subjects of collective bargaining in negotiating a new agreement

Interest arbitration held to contravene public policy insofar as a public entity's being bound to nonmandatory subjects of collective bargaining in negotiating a new agreement

Niagara Frontier Tr. Metro Sys., Inc. v Amalgamated Tr. Union Local Union 1342,2013 NY Slip Op 00622, Appellate Division, Fourth Department

Supreme Court denied Niagara Frontier Transit Metro System’s petition to stay arbitration in case that involved a labor dispute arising from a collective bargaining agreement [CBA] between the System, a public benefit corporation that provides bus and light rail transit service, and the Amalgamated Transit Union Local Union 1342 (Local 1342), which represents a unit of System’s employees.

Local 1342 had demanded that the terms and conditions of a new CBA be determined by compulsory "interest arbitration." 

The Appellate Division reversed the lower court’s decision and granted the System’s petition.

The Appellate Division explained that “even assuming, arguendo, that the [Collective Bargaining] Agreement entitles Local 1342 to interest arbitration over [the System’s] objection, we would conclude, as we did in ATU,* that such a result ‘contravenes public policy, both by compelling a public entity, which has broad responsibilities to the entire population of the State, to be bound forever to nonmandatory subjects of bargaining, i.e., interest arbitration, and by encumbering its ability to negotiate an entirely new collective bargaining agreement which reflects the changing requirements and mandates of the public interest’"

* Matter of Local Union 1342 of Amalgamated Tr. Union v Niagara Frontier Tr. Metro Sys, 183 AD2d 355, leave to appeal denied, 81 NY2d 710.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00622.htm

A court’s power to vacate an arbitration award is limited

A court’s power to vacate an arbitration award is limited
Professional, Clerical, Tech., Employees Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2013 NY Slip Op 00612, Appellate Division, Fourth Department

The issue before the arbitrator was whether the Board of Education’s selection process used in its filling two vacancies of a newly created title, Assistant Management Analyst, violated the collective bargaining agreement between the parties. The arbitrator concluded that it had not.

Essentially the arbitrator rejected the Association’s argument that the collective bargaining agreement provided that seniority "trumps" a supervisor's discretion in selecting the individual to fill the vacancies in question.

Supreme Court granted the Professional, Clerical, Tech., Employees Assn.’s application to vacate an arbitration award.

The Appellate Division unanimously reversed the lower court’s ruling and granted the Board of Education’s the cross petition seeking to confirm the arbitration award, explaining that Supreme Court erred in vacating the award as the award was not irrational and the arbitrator did not exceed a specific limitation on her authority.*  

Noting that “It is well established that "an arbitrator's rulings, unlike a trial court's, are largely unreviewable," citing Matter of Falzone, 15 NY3d 530, the Appellate Division said that "a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

As the Court of Appeals held in New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326), "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice."

* The Appellate Division also held that Supreme Court erred in determining that the arbitrator impermissibly modified the collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00612.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending February 3, 2013 [Click on text highlighted in bold to access the full report]


DiNapoli Finalizes Fiscal Monitoring System

State Comptroller Thomas P. DiNapoli announced Monday his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain.

DiNapoli: Inappropriate Payments Cited In Kingston Audit

The city of Kingston made $23,000 in improper payments to employees for unearned leave time, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. As a result of the audit, former fire chief Richard Salzmann was arrested and charged by Ulster County District Attorney D. Holley Carnright with offering a false instrument for filing in the second degree, a class A misdemeanor.

DiNapoli: Empire BlueCross BlueShield Paying Hospitals Windfalls For Special Medical Items

New York State health insurance provider Empire BlueCross BlueShield has routinely allowed hospitals to charge excessive amounts for special medical items such as implants, drugs and blood, because they did not sign agreements to limit reimbursement for those items, according to an auditof the New York State Health Insurance Program released Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Utica Facing Continued Fiscal Challenges

The city of Utica continues to struggle with recurring budget gaps and has nearly depleted its fund balances, according to a fiscal report issued Tuesday by State Comptroller Thomas P. DiNapoli. The report is the latest in a series of fiscal profiles on cities across the state.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of:

the Big Flats Fire District No. 2;

the Golden Glow Volunteer Fire Company, Inc.;

the Lincoln Fire District; and,

the Village of Richmondville.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of:

the Hadley–Luzerne Central School District; and,

the Hyde Park Central School District

State Comptroller's auditors alledge that NYSHIP provider Empire Bluecross Blueshield paid excessive amounts for special medical items

State Comptroller's auditors alledge that NYSHIP provider Empire Bluecross Blueshield paid excessive amounts for special medical items

Source: Office of the State Comptroller

New York State Health Insurance Program (NYSHIP) provider Empire BlueCross BlueShield [Empire] has routinely allowed hospitals to charge excessive amounts for special medical items such as implants, drugs and blood because they did not sign agreements to limit reimbursement for those items according to an audit of the NYSHIP released on February 1, 2013 by New York State Comptroller Thomas P. DiNapoli.  

The Comptroller's Office said:
 
"DiNapoli’s auditors reviewed claims for a series of special items, finding Empire paid hospitals on average 344 percent more than the costs of the items in question. While the details of the special items cannot be disclosed due to proprietary concerns, examples of Empire’s excessive payments include:

Claim Example	Amount Empire Paid Hospital for Special Items	Hospitals’ Purchase / Acquisition Cost	Excess to Hospital
A	$82,407	$18,000	$64,407	358%
B	$94,656	$25,000	$69,656	279%
C	$102,877	$24,780	$78,097	315%
D	$80,307	$13,399	$66,908	499%
Totals	$360,247	$81,179	$279,068	344%

"DiNapoli’s auditors were unable to obtain supporting documentation from 13 hospitals for 44 selected claims for special items because Empire cannot compel the hospitals to submit that information. If Empire paid these hospitals 344 percent more than the costs of the items, the hospitals could have generated profits of nearly $1.6 million on these claims, auditors estimated.

"NYSHIP provides health insurance coverage to active and retired state, participating local government and school district employees and their dependents.

"The Department of Civil Service contracts with Empire Blue Cross and Blue Shield (Empire) to provide hospitalization coverage under the Empire Plan, the largest insurance option provided by NYSHIP. Empire processes Plan claims for hospital services and medical items in accordance with agreements it negotiates with participating hospitals.

"Empire’s hospital agreements provide for additional payments for certain special items. Agreements with many member hospitals often limit payments for special items, but others do not. For the period January 1, 2011 through March 31, 2011, Empire paid 246,870 claims totaling over $529 million for services provided to plan members. This included payments totaling $24 million for 12,990 claims for special items submitted by hospitals whose agreements did not limit Empire’s reimbursements for such items.

"DiNapoli’s auditors recommended Empire:

·        Ensure that future agreements with hospitals contain language that specifies the basis of reimbursement for the purchase and acquisition of special items; and require hospitals to provide appropriate support documentation (including invoices for special items) upon request; and

·        Develop and implement internal controls to ensure that payments for special items are made in accordance with hospital agreements.

"For a copy of the roll-up report documenting the findings on 15 hospitals visit: http://osc.state.ny.us/audits/allaudits/093013/11s17.pdf

"The audits of 11 other individual hospitals with special item payment agreements can be found under the NYSHIP section at: http://www.osc.state.ny.us/audits/index.htm "

Employee privacy and Internet Social Media

Employee privacy and Internet Social Media

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1844

California’s Governor Edmund G. Brown has signed into law a bill that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.

The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.

The new law provides as follows:

California Labor Code

CHAPTER  2.5. Employer Use of Social Media

§980.

 (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

(b) An employer shall not require or request an employee or applicant for employment to do any of the following:

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as provided in subdivision (c).

(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment

Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment  

The Appellate Division sustained the termination of a deputy sheriff’s employment as a deputy sheriff, holding that substantial evidence supports the findings that the deputy sheriff:

[1] Falsely reported that he was unable to work from October through the following June;

[2] Engaged in unauthorized outside employment: and

[3] Lied under oath when he denied engaging in such outside employment at his workers' compensation hearing.

The court ruled that there was no basis to disturb the credibility determinations of the Administrative Law Judge and that the penalty of termination “does not shock our sense of fairness,” citing Cherry v Horn, 66 AD2d 556

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00427.htm

Challenging the denial of an appeal of an unsatisfactory performance rating

Challenging the denial of an appeal of an unsatisfactory performance rating 
102 AD3d 586

Supreme Court denied a petition seeking to annul the determination by the New York City Board of Education denying an educator’s appeal of an unsatisfactory rating (U-rating) for school year.

The Appellate Division unanimously affirmed the lower court’s ruling, explaining that the educator “failed to show that the U-rating was arbitrary and capricious, or made in bad faith.”

The court noted that detailed observations in reports prepared by the principal and two assistant principals describing the educator's poor performance in class management, engagement of students, and lesson planning provided a rational basis for the U-rating.

Further, said the Appellate Division, the record showed that after the educator received a U-rating at the end of the prior school year and was then provided with a professional development plan at the start of the succeeding school year and, throughout that year, received professional support and had a series of classroom observations by the principal and two assistant principals. Each observation, said the court, was documented by a detailed letter to the educator noting areas of improvement and making specific recommendations for addressing continuing deficiencies.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00418.htm