Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Civil Serv. Employees Assn., Inc. v Nassau Health Care Corp., 2014 NY Slip Op 01704, Appellate Division, Second Department

CSEA alleged that Nassau Health Care Corporation [NHCC] had violated the terms of a collective bargaining agreement [CBA] when it deemed certain employees reinstated to their former positions as "new" employees for purposes of determining their eligibility for health benefits, their seniority status, and their rate of leave accruals.*

NHCC and CSEA proceeded to nonbinding arbitration. The arbitrator issued an advisory award sustaining CSEA’s grievances. NHCC rejected the advisory award and CSEA sued, alleging breach of contract and sought declaratory relief and a court order directing NHCC to compensate the employees for expenses incurred by reason of such alleged violations. Supreme Court granted CSEA’s motion for summary judgment and NHCC appealed.

The Appellate Division modified the Supreme Court’s order, finding that NHCC had not violated the CBA with respect to its conduct towards former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

The court said that the CBA was clear and unambiguous with respect to treatment of those former employees reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

In contrast, the Appellate Division held that the CBA was not clear and was ambiguous with respect to those employees reinstated to a full-time position after one year or more after the interruption of their full-time employment with NHCC but less than a full year interrupted full-time service when periods of part-time employment were taken into account. Resolution of the ambiguity, said the court, is for the “trier of the fact,” remanding this issue to Supreme Court for its further consideration.

The court explained that "When a contract, read as a whole to determine its purpose and intent, plainly manifests the intent of the parties, relief may be granted by way of summary judgment.… Where, however, the contractual provision relied upon is ambiguous, the resolution of the ambiguity is for the trier of fact” to resolve.

Here, said the court, the CBA was clear and unambiguous with respect to treatment of former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period of their layoff. NHCC demonstrated prima facie that these employees were treated in conformity with those contractual provisions said the Appellate Division.

Thus the Appellate Division ruled that Supreme Court was incorrect in denying NHCC's motion for summary judgment declaring that it did not violate the CBA with respect to its treatment of employee absent from full time employment for one year or longer without having had any intervening part-time employment with NHCC.

The Appellate Division held that the CBA was not so clear and unambiguous with respect to NHCC's treatment of employees reinstated to a full-time position one year or more after being laid-off  but who had been employed by NHCC part-time during their absence following their laid-off.

Accordingly, the Appellate Division held that Supreme Court properly denied NHCC's motion seeking summary judgment in its favor with respect to employee having intervening part-time employment with NHCC but erred in granting CSEA's motion for summary judgment with respect to these employees. The issue was remitted to the Supreme Court for further proceedings with respect to those individuals employed by NHCC on a part-time basis during while absent from full-time employment by NHCC for one year or longer.

* The Appellate Division distinguished between to groups of employee: one group consisted of employees absent from their full time employment for more than one year and a second group of employees consisting of employees absent from their full time employment for more than one year but who had been employed by NHCC on a part-time basis during their absence from full-time employment with NHCC.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01704.htm
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Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct

Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct

2014 NY Slip Op 01813, Appellate Division, First Department

2014 NY Slip Op 01814, Appellate Division, First Department

In both of these cases tenured teachers were terminated after a disciplinary arbitrator found them guilty of allegedly "engaging in what appeared to be sexually inappropriate behavior with a colleague" while on school property in an “unofficial capacity.”

Supreme Court sustained the arbitrator’s findings of misconduct but remanded the matter for a new hearing and the imposition of a lesser penalty. The Appellate Division, however, modified the Supreme Court’s decision “on the law” by [1] reinstating the findings of misconduct but vacated that part of the order directing a new hearing and [2] remanding the matter for the imposition of a lesser penalties.

Explaining that where the parties are subjected to compulsory arbitration, the arbitration award must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." Further said the court, “[a] hearing officer's determinations of credibility, however, are largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures - all the nuances of speech and manner that combine to form an impression of either candor or deception."

The Appellate Division found that Supreme Court “erred in substituting its judgment” for that of the hearing officer and the arbitrator's findings of misconduct “was supported by adequate evidence.”

 

The court, however, agreed with Supreme Court that the penalty of termination of employment was shockingly disproportionate to the misconduct of the respective employees. A result is shocking to one's sense of fairness, said the court, “if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals.” 

Another consideration in fixing an appropriate penalty: would be the prospect of deterrence of the individual or of others in like situations.

Before the incident, the court noted, the teachers involved had made many positive contributions to the school and had an unblemished disciplinary records.

Among the circumstances that could serve in mitigating the disciplinary penalty imposed on an employee, in this instance termination, cited by the court were the following:

1. The employee’s actions were not premeditated and the employee had a spotless record for five years.

2. The employee’s behavior demonstrated a lapse in judgment in the absence of evidence that the incident was anything but a one-time mistake.

3. That, with respect to an educator, the conduct did not involve some form of romantic involvement or other inappropriate conduct with a student, but rather appeared to be consensual sexual conduct with an adult colleague that was not in and of itself either criminal or otherwise improper.

4. The absence of any indication in the record that the educator's conduct will affect his or her ability to teach or that he or she intended to inflict any damage on any student.

5. The tenured educator had an unblemished disciplinary record and consistently satisfactory performance ratings.

The Appellate Division, in remanding the matter for the imposition of lesser penalties, commented that “While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

N.B. James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling.

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Mr. Beyer's article is posted on the Internet at:http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01813.htm

and

http://www.nycourts.gov/reporter/3dseries/2014/2014_01814.htm

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Guidelines considered by the Commissioner of Education when adjudicating an application seeking the removal of a member of a board of education or a school officer

Guidelines considered by the Commissioner of Education when adjudicating an application seeking the removal of a member of a board of education or a school officer

Decisions of the Commissioner of Education, Decision 16,593

In considering this application seeking the removal of certain members of the school district’s board of education, the Commissioner first recited the litigation and other procedures over a number of years in which the parties to this application were involved and noted that “the history of dissention and conflict” affecting the school district is well documented by the numerous legal actions in recent years involving the district.

In the words of the Commissioner: “The record before me illustrates all too well how conflict and an atmosphere of this nature can interfere with the board’s ability to govern the affairs of the district and can undermine the public’s confidence in its elected school board. I strongly urge respondents and the board to engage in constructive discussions – not only as a board, but also with district staff and the community – aimed at eliminating conflict and achieving the best possible governance of the school district.”

After addressing a number of procedural matters, the Commission turned to the merits of the application in which it was alleged that conflicts of interest involving certain members of the school board had surfaced in the course of a board meeting and sought the removal of the board members.

In adjudicating an application seeking to remove a member of a board of education or a school officer the Commissioner noted the following criteria:

1. A member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

2. In an application for removal of a member of a board of education or a school officer brought pursuant to Education Law §306, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. *

3. Pursuant to §277.1(a) of the Commissioner’s regulations, the application “must distinctly state the willful violation of law, neglect of duty, or willful disobedience

of a decision, order or regulation of the commissioner charged against the officer....”

The petition submitted to the Commissioner seeking the removal of the board members alleged only that the named individuals violated board bylaws and policies, including §6110,**with respect to their conduct at a particular board meeting when they debated and voted upon various resolutions without publicly disclosing their alleged interests in such resolutions.

However, said the Commissioner, “it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, does not constitute sufficient grounds for removal of a member of a board of education in a proceeding pursuant to Education Law §306.”

Here it was alleged that the conflict of interest provisions of Article 18 of the General Municipal Law were violated because the board members had friendships or personal relationships with the subjects of the resolutions voted on at the board meeting. However the Commissioner held that the petitioner failed to establish facts sufficient to warrant the removal of the board member pursuant to Education Law §306 on this basis.

The Commissioner explained that the conflict of interest provisions of the General Municipal Law***define an interest as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves." Further, said the Commissioner, there is no provision in the General Municipal Law that deems a board member to have an automatic interest in a contract between a friend and the district in which the board member serves. Citing Opinion of the State Comptroller No. 83-40, the Commissioner pointed out that such an interest would arise only if a board member was to derive a direct or indirect pecuniary or material benefit from the resolution.

In contrast to alleging or establishing that any board member received a pecuniary or material benefit from their actions, the petitioner “merely alleges that they had undisclosed personal relationships relating to their votes.”

Noting that the petitioner cited no authority for the proposition that a friendship or social relationship, by itself, creates a conflict of interest, the Commissioner ruled that the petitioner had failed to sustain his burden of demonstrating a clear legal right to the relief requested and denied his application to remove the board members.

* See 8 NY CRR §275.10.

** §6110(3)(e) of the district’s ethics policy, which states that a member of the board shall “publicly disclose on the official record the nature and extent of any direct or indirect financial or other interest he/she has” in a resolution before the board.

*** See General Municipal Law §800[3].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16593.pdf
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The failure to serve a necessary party requires the dismissal of the proceeding

The failure to serve a necessary party requires the dismissal of the proceeding

2014 NY Slip Op 01696, Appellate Division, First Department

The Article 78 action involved an individual [Petitioner] seeking a court order annulling a decision of the New York City Civil Service Commission [CSC].

Petitioner was terminated from his employment by the New York City Department of Sanitation. CSC affirmed the Department’s decision and Petitioner appealed CSC’s ruling.

The Appellate Division sustained the Supreme Court granting CSC’s motion to dismissed Petitioner’s action, pointing out that Petitioner “concededly” failed to timely serve CSC, which was a necessary party* because CSC was the agency that made the decision challenged by Petition. The court explained that “[t]his failure to serve a necessary party required the dismissal of the proceeding,” citing Solid Waste Services, Inc. v City of New York, 29 AD3d 318 [leave to appeal denied, 7 NY3d 710].

The Appellate Division also sustained the Supreme Court declining to grant Petitioner an extension of time to perfect his appeal “notwithstanding the apparent absence of prejudice,” because of the Article 78 petition's “lack of merit.” Further, said the court, “Were we to reach the merits, under the extremely narrow scope of review applicable as [Petitioner] administratively appealed to CSC, we would find that [Petitioner} fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction.”

* A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01696.htm
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Suspension without pay pending employer’s disciplinary determination

Suspension without pay pending employer’s disciplinary determination

CSEA, Cortland Local v Cortland Hous. Auth., 2014 NY Slip Op 01652, Appellate Division, Third Department

In August the Cortland Housing Authority served disciplinary charges pursuant to Civil Service Law §75 against a member of the Civil Service Employees Association’s Local Housing Association Unit and suspended her without pay. As the disciplinary hearing had not been conducted within 30 days, the member was restored to the Authority’s payroll while she remained suspended from work.*

In mid-December the Local filed a demand to arbitrate the disciplinary matter involving the member. Upon receipt of the demand for arbitration the Authority removed the member from the payroll and initiated a proceeding to permanently stay arbitration.

Supreme Court granted the stay the following February but a disciplinary hearing in accordance with Civil Service Law §75 was not scheduled. In April the Local commenced this proceeding on behalf of its member seeking to restore her to the Authority’s payroll retroactive to December as no disciplinary hearing had yet been scheduled.

Supreme Court determined that the delay caused by the Local’s demand for arbitration, together with 30 days as a reasonable time thereafter within which to hold a hearing, should be charged to the member. Accordingly, the court directed that the member be restored to pay status retroactive to the following March 29^th with back salary less any unemployment benefits that she may have received since that date and thereafter continuing on the payroll until the disciplinary matter is resolved.

The Authority appealed, contending that the proceeding seeking reinstatement to the payroll was premature and should not be considered ripe for review until after the Civil Service Law §75 hearing is concluded. The Appellate Division disagreed and affirmed the lower court’s determination.

The court explained that where unreasonable delay occurs in holding a disciplinary hearing and that delay is attributable in part to the public employer, an employee whose suspension without pay has exceeded 30 days may seek reinstatement to the payroll pending a final disciplinary determination by the appointing authority.

The Appellate Division also noted that “a reduction from back pay of the amount of unemployment insurance benefits received during such time is statutorily authorized” and that Supreme Court properly reduced the award by that amount, “but there was no need to further reduce the award under the circumstances.”**

The court explained that an employer's best protection against a back pay award accruing is to hold the hearing within 30 days or, if beyond 30 days, create a clear record reflecting that it is not responsible for the delay.

However, it should be noted that courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the §75 hearing process requested by the employee. [See, for example, DeMarco v City of Albany, 75 AD2d 674, Amkraut v Hults, 21 AD2d 260].

* See Civil Service Law §75 [3].

** N.B. Prior to its amendment in 1984, §75.3 provided that an employee acquitted of disciplinary charges be “restored to his position with full pay less the amount of compensation which he may have earned in any other employment and any unemployment insurance benefits." In §75.3 was amended by Chapter 710 of the Laws of 1984 and no longer authorized an adjustment reflecting compensation received because of “other employment”. [See, also, §76 and §77 of the Civil Service Law.]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01652.htm


 

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Failing to take lawful action against an individual in exchange for a benefit

Failing to take lawful action against an individual in exchange for a benefit

2014 NY Slip Op 01663, Appellate Division, First Department

A New York City police officer [Officer] was terminated from his position after being found guilty of failing to take lawful police action against an individual who was driving without a license in exchange for that individual agreeing to provide a benefit to Officer, -- “installing sheetrock at [Officer’s] home.”

The Appellate Division sustained the Commissioner’s termination of Officer, noting that substantial evidence supported the determination. Further, said the court, “The penalty of termination does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The Appellate Division also considered the fact that “one of the two main witnesses relied upon by the hearing officer in reaching his conclusion had recanted his testimony” some two years later.

The Commissioner, however, had denied Officer’s request for a new hearing based on “this new evidence.” The court said that the recantation raised issues that were addressed by the Commissioner, who considered the submissions by Officer and reviewed of all the evidence.*

The Appellate Division decided that “Under the circumstances, including the sufficiency of the other evidence, the witness's recantation did not warrant a further hearing.”

* The Appellate Division, citing Douglaston Civic Assn. v Galvin, 36 NY2d 1, noted that the Commissioner’s 2013 decision denying Officer's request for a new hearing based on such “new evidence” could not reviewed in the instant proceeding as a separately brought petition was required.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01663.htm

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