Reassignment to a different work shift

Reassignment to a different work shift

Matter of Kattaya (Commissioner of Labor) 32 AD3d 1124

Hany Kattaya was a security officer at a museum. He worked both the day shift and the night shift, preferring the night shift because he received a pay differential and free parking while working the night shift.

Due to disciplinary problems, the museum decided to assign him only to the day shift. Kattaya refused to accept this change of assignment because he would lose the night pay differential and free parking benefit and incur other expenses. He resigned from his position and applied for unemployment insurance benefits.

Kattaya’s application for unemployment insurance benefits was rejected after the Unemployment Insurance administrative law judge ruled that Kattaya had voluntarily left his employment without good cause. 

The Appellate Division, Third Department, dismissed Kattaya’s appeal, commenting, “It is well settled that dissatisfaction with one's work schedule does not constitute good cause for leaving one's employment.”

The court decided that the loss of the pay differential and free parking, and the additional cost of commuting and childcare expenses associated with working during the day, were not compelling reasons for resigning under the circumstances present in this case.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06893.htm
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Disruptive behavior during a public meeting

Disruptive behavior during a public meeting

13 Misc 3d 64

Although the Town Board announced that members of the public would be permitted to speak during its meeting about any of the topics on the agenda, on individual insisted on speaking about items not on the agenda. Despite the Town Supervisor's warnings that the speaker would be asked to leave if he did not limit his comments to items on the agenda, the individual persisted in asking questions and making comments concerning matters not on the agenda.

When the individual refused to leave when asked to do, he was arrested and charged and convicted of trespass.

The Appellate Term affirmed the individual's conviction, noting that a government entity has a significant interest in controlling its agenda and preventing the disruption of its public meetings and such entities "may confine their meetings to specified subject matter." The decision notes that while a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he or she is expressing, he or she may be stopped if his or her speech becomes irrelevant or repetitious.

In the words of the court::

In the case at bar, defendant's questions were irrelevant to the purpose of the meeting and inappropriate for the time and place, as the public was only privileged to discuss topics set forth on the agenda. We are of the opinion that the Town Board's actions were narrowly tailored to a significant interest, to wit, addressing matters on the agenda in an orderly and efficient manner. Furthermore, rather than restrict defendant's speech completely, the Town Board merely directed him to discuss agenda-related matters.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26361.htm

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Arbitrators may make an award reflecting the spirit of the agreement

Arbitrators may make an award reflecting the spirit of the agreement

Matter of Arbitration Between Civ. Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO Niagara Falls Bridge Commn. Unit Niagara County Local 832, 32 AD3d 1186

The Appellate Division, Fourth Department ruled that a Supreme Court Justice properly granted CSEA’s petition to confirm an arbitration award and denied the Niagara Falls Bridge Commission’s cross motion to vacate the award.

The Court held that the arbitrator did not exceed the collective bargaining agreement’s [CBA] limitations on her power.

The CBA provided that the arbitrator "shall not have the power to add or subtract from or to modify in any way the terms of [the CBA]." In this instance, however, the court found that the record established that the arbitrator merely interpreted conflicting provisions of the CBA in order to effectuate the intent of the parties.

According to the decision "Parties who agree to refer contract disputes to arbitration must recognize that arbitrators may do justice and the award may well reflect the spirit rather than the letter of the agreement." The court decided that the arbitrator's interpretation of the CBA was appropriate under the circumstances and, contrary to Niagara Falls Bridge Commission’s argument, it was not "totally irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06663.htm
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Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75 

Lynch v Board of Education of the Hewlett-Woodmere Union Free School District, 13 Misc 3d 1217(A)

The School District changed the work schedule of a school bus driver and part time security aide. The change prevented him from working as a security aide.

The employee sued, contending that he lost benefits because of the change in his work schedule. This change in his work schedule, he argued, was a "de facto termination" from his security aide position in violation of Civil Service Law Section 75.

The court agreed, holding that “A ‘diminution in benefits’ occasioned by a reassignment is sufficient to qualify as a disciplinary action so as to require compliance with CSL §75.”

The collective bargaining agreement, however, provided that complaints concerning work assignments and working hours were to be processed through the agreement’s “contract grievance procedure”.

The court said that this provision did not control as the collective bargaining agreement also provided that the term "grievance" did not include any complaint that was otherwise reviewable pursuant to law or any rule or regulation having the force or effect of law.

The court ruled that “Given the exemption from grievance procedure for those matters otherwise reviewable pursuant to law” Lynch could sue “to vindicate a statutory right under Civil Service Law §75” without first utilizing the collective bargaining agreement's contract grievance procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51881.htm

N.B. An earlier decision posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2006/2006_51734.htm

vacated by the court and republished a modified the opinion to correct a mis-stated date.

A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action

12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.

Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51605.htm

Contracting out the recruitment and appointment of substitute teachers

Contracting out the recruitment and appointment of substitute teachers

Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422

The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching.

The Commissioner applied the rationale set out in the Sweeney decision [(44 Ed Dept Rep 176, Decision No. 15,139)]. In Sweeney it was held that a BOCESdoes not have the authority to contract with a private party for instructional services.

Other appeals in which the Commissioner determined that a board of education lacks authority to provide instructional services through an independent contractor include Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, and Decision No. 10,236. [See, also, Education Law §1950(4)].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15422.htm