Recent postings on the U.S. Department of Labor’s website

Recent postings on the U.S. Department of Labor’s website

Source: U.S. Department of Labor

The following updates to the U.S. Department of Labor, Office of Administrative Law Judges' website are now available:

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Decisions of the Administrative Review Board - November 2013

Decisions of the Administrative Review Board - December 2013

Summary of Federal Court Decisions for Calendar Year 2013
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Injured police officer sues persons alleged to have caused her injury pursuant to General Municipal Law §205-e

Injured police officer sues persons alleged to have caused her injury pursuant to General Municipal Law §205-e
2014 NY Slip Op 00077, Appellate Division, First Department

A New York City police officer alleged she was injured in a motor vehicle accident while she was a passenger in an unmarked police car that was being driven by another New York City police officer. She sued under color of General Municipal Law §205-e.

Essentially §205-e of the General Municipal Law gives certain injured police officers the right to sue the person or persons alleged to be guilty of “causing any accident, causing injury, death or a disease which results in death, that occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence” because of the person’s or persons’ failing to comply with the relevant of any law, rule or regulation. The person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury is liable to pay damages to the injured officer.

Supreme Court, New York County*denied the defendant’s motion for summary judgment dismissing the General Municipal Law §205-e claims predicated upon their alleged violation of the Vehicle and Traffic Law. The Appellate Division affirmed the Supreme Court’s ruling.

According to the Appellate Division’s decision, the injured officer testified that the officer driving the unmarked vehicle had double-parked the vehicle in order to observe two suspects and that they were sitting at the accident location approximately 15 to 20 minutes before they were struck from behind by a codefendants' minivan.

In addition, said the court, the police officer driving the vehicle had testified that he had double-parked the police vehicle in order to investigate a suspect, which is not an "emergency operation" as defined by Vehicle and Traffic Law § 1104(a).

* The Supreme Court’s decision, setting out the fact in this action, is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2012/2012_32185.pdf

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00077.htm
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An employee organization’s duty of fair representation

An employee organization’s duty of fair representation

2013 NY Slip Op 33186(U), Supreme Court, New York County, Judge Donna M. Mills [Not selected for publication in the Official Reports.]

A New York City Department of Education high school teacher [Member], represented for the purposes of collective bargaining by the United Federation of Teachers [UFT], was served with disciplinary charges  pursuant to Education Law §3020-a alleging that she was incompetent.

Member was found guilty of the charges of incompetency following an administrative hearing held pursuant to 3020-a of the Education Law. The penalty imposed: termination from her position.

Following her termination, Member sued the Department of Education, seeking a court order nullifying the hearing officer’s decision to terminate her. Her petition was dismissed on procedural grounds and for lack of merit.*

A year later Member filed a federal lawsuit alleging that her termination was discriminatory. She lost that lawsuit after a jury trial.

Two years later Member sued UFT and several “union lawyers,” blaming them for her termination. This complaint was dismissed as well.

Next Member commenced this action, pro se. 

According to the decision, Member’s complaint appeared to be in the nature of an allegation that UFT breached its duty of fair representation. UFT filed a motion to dismiss for failure to state a cause of action.

NYS Supreme Court Judge Donna M. Mills, in considering UFT’s motion, applied the following guidelines in considering the merits of UFT’s motion:

1. The court must determine whether from the four corners of Member’s pleading “factual allegations are discerned which taken together manifest any cause of action cognizable at law.”

2. While the allegations in Member’s complaint are to be accepted as true when considering UFT’s motion to dismiss, “allegations consisting of bare legal conclusions, as well as factual claims flatly contradicted by documentary evidence, are not entitled to any such consideration.”

3. New York case law recognizes the existence of a duty of fair representation on the part of public sector unions predicated on their role as exclusive bargaining representatives of its members in the negotiating unit.

4. An employee organization breaches its duty of fair representation “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”

Judge Mills explained that whether that duty has been breached in a particular case is “essentially a factual determination.” Here, said the court, Member’s complaint fails to set forth facts establishing that Member‘s alleged injury arose out of UFT‘s role as the exclusive bargaining representative of the collective bargaining unit in which Member is a member. 

In the words of the court, “Member‘s allegations are conclusory, and lack a factual basis to state a cause of action.”Accordingly, Judge Mills dismissed Member‘s complaint for failure to state a cause of action.

Granting UFT’s motion for summary judgment dismissing Member’s petition, Judge Mills noted that the allegations in the complaint that preceded 2012 were disposed of in a decision by State Supreme Court Justice, Eileen A Rakower, dated December 23, 2011, and reported in 26 Misc.3d 1208(A); 93 A.D.3d 534

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/pdfs/2013/2013_33186.pdf
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Police officers attain detective status by operation of law

Police officers attain detective status by operation of law

Sykes v City of Niagara Falls, 2013 NY Slip Op 08684, Appellate Division, Fourth Department

Certain police officers serving in the Niagara Falls Police Department (NFPD) Crime Scene Unit filed a petition pursuant to CPLR Article 78 proceeding seeking a court order directing the Department to designate them detectives pursuant to Civil Service Law §58(4)(c)(ii).

§58(4)(c)(ii) of the Civil Service Law, in pertinent part, provides: “Notwithstanding any other provision of law, in any jurisdiction other than a city with a population of one million or more or the state department of corrections and community supervision … any person who has received permanent appointment to the position of police officer, correction officer of any rank or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation.”

Supreme Court granted the petition, concluding that the officers had been temporarily assigned to the same duties as detectives in the NFPD for eighteen months or more and thus were entitled to be “permanently designated” as detectives as required by the statute.

The Appellate Division affirmed the lower court’s ruling, finding that viewing the evidence in the light most favorable to the prevailing officers, Supreme Court’s decision was supported by a fair interpretation of the evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08684.htm

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LIMITATIONS ON SICK LEAVE

LIMITATIONS ON SICK LEAVE

Economico v Village of Pelham, 50 N.Y.2d 120

Notwithstanding a contract provision providing for "unlimited sick leave with pay" for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law.

The Court distinguished this case where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement. The State's interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee's right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary.

The Court, in another case decided the same day (Dolan vs Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is "some factual dispute impacting upon the employer's right to discharge" the employee. Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases.

In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptrollers Opinion noted that "a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.

LIMITATIONS ON SICK LEAVE

LIMITATIONS ON SICK LEAVE

Economico v Village of Pelham, 50 N.Y.2d 120

Notwithstanding a contract provision providing for "unlimited sick leave with pay" for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law.

The Court distinguished this case where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement. The State's interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee's right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary.

The Court, in another case decided the same day (Dolan vs Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is "some factual dispute impacting upon the employer's right to discharge" the employee. Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases.

In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptrollers Opinion noted that "a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.