Employer’s unilateral discontinuing its past practice of paying the full cost of health insurance for its retirees held a violation of §209-a.1(d) of the Taylor Law

Employer’s unilateral discontinuing its past practice of paying the full cost of health insurance for its retirees held a violation of §209-a.1(d) of the Taylor Law

Improper Employer Practice Case No. U-31625 [PERB]

A collective bargaining agreement [CBA] with a term of June 1, 2003 to May 31, 2007, was the last agreement that a former collective bargaining representative negotiated with the Village. Article 15, §4 of that agreement provides that the Village will pay the full cost of health insurance premiums for unit employees hired before December 31,1988, and that employees hired after that date will contribute to the cost of their health insurance premiums if future annual increases exceed a certain amount. Article 15 also authorizes the Village to collect the amount of the employee contribution through payroll deduction. That provision was first included in the 1988-1991 CBA and was continued unchanged in all subsequent agreements, up to and including the 2003-2007 CBA.

Despite the existence and continuation of language set out in the 1988-1991 CBA providing for a contribution to health insurance premiums by post-1988 employees, for seventeen years the Village never sought to require unit employees to pay such contributions. However, on June 1, 2005, the Village began deducting the contractual health insurance contribution from the pay of post-1988 employees.

A contract grievance was filed and the arbitrator, in an award dated June 23, 2006, found that the Village did not violate the CBA when it began collecting the contractual health insurance contribution in 2005.

The first CBA negotiated by a successor collective bargaining representative with the Village had a term of June 1, 2007 to May 31, 2012 and provided for employee contributions for health insurance.   

However, all CBAs up to and including the 2003-2007 agreement were silent with respect to the payment of health insurance benefits to employees during their retirement from the Village and until August 2011, the Village paid the entire cost of health insurance premiums for all unit employees upon and during their retirement. Further, there was testimony in the record in the instant hearing that when the parties were negotiating employee contributions towards health care premiums, they were discussing contributions to be paid by active employees and that as the “offer letter” that resulted in the new CBAs did not contain the word “active,” it was subsequently added “to ensure that the health insurance provision [in the collective bargaining agreement] was not interpreted to apply to retirees.”

The parties stipulated that two post-1988 employees retired in, respectively, April and September, 2004, and that the Village paid the full cost of health insurance for them while they were employed and has continued to do so during their retirement

In August 2011 a unit employee, who had initially commenced his employment with the Village after December 31, 1988, retired. Immediately before his retirement, the employee was contributing towards the  cost of his health insurance premium and the Village was paying the remainder. Upon his retirement, the Village continued to charge the individual a ten percent contribution and to pay the remainder of the cost of his health insurance premium. This individual was the first unit employee who, upon retirement, was required to pay a contribution towards the cost of his health insurance premium.

A Public Employment Relations Board Administrative Law Judge found that the 2007-2012 CBAs, and all prior agreements, “simply does not refer to retirees or what health insurance benefit current employees will receive in retirement.” Further, the ALJ found §4 of Article 15 of the 1988-1991 agreement is appropriately interpreted as silent with respect to the practice here in issue. This finding, said the ALJ, was supported not only by the plain language of that provision but by the fact that "when the parties intended to affect a benefit granted to current employees that continues into retirement, they specifically so state.”

Further, said the ALJ, “the record evidence regarding the negotiations for the 2003-2007 CBA clearly shows that the parties did not negotiate the issue of what current employees would receive in retirement.”

Addressing the employee organization’s alleged past practice claim, the Administrative Law Judge explained that “To establish an enforceable past practice that cannot be unilaterally changed without negotiation, the charging party must demonstrate that the ‘practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected unit employees that the [practice] would continue.’ In addition, the practice must concern a mandatory subject of negotiation.”

As to the argument advanced by the Village that PERB lacked jurisdiction and the employee organization lacked standing to consider the employee organization's allegations because the complaint pertains to retirees, the ALJ said that the charge filed by the employee organization “makes clear that it is not seeking to enforce the rights of already retired persons, but to enforce the practice with respect to current employees who retire in the future.”

The Village also contended that the subject matter in issue is nonmandatorily and not negotiable because it pertains to retirement benefits,* The ALJ pointed out that although PERB has held that a demand for health insurance benefits for former employees who have already retired is nonmandatory, the subject of health insurance benefits for current employees upon their retirement constitutes a form of deferred compensation and is mandatorily negotiable.

The Administrative Law Judge found that an employer’s unilateral change of an enforceable past practice concerning health care benefits for current employees upon their retirement violates §209-a.1(d) of the Taylor Law.The ALJ also found that the record shows that the unit employees were aware of the practice regarding their receipt of fully paid health insurance during retirement and that they expected the practice to continue.

Holding that the Village violated §209-a.1(d) of the Taylor Law, the Administrative Law Judge ordered the Village to:

1. Rescind its directive that unit employees hired after December 31, 1988, will be required to pay a health insurance contribution during retirement; and

2. Not unilaterally change the past practice of paying the full cost of health insurance premiums for current unit employees during retirement; and

3. Make whole any unit employees who retired during or after August 2011 and who have been required to contribute towards the cost of health insurance.

* In Lippman v Sewanhaka Central High School District, 66 NY2d 313, the court held that health insurance was not a retirement benefit within the meaning of Article 5, Section 7, of the State Constitution.
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Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

OATH Index No. 1233/14

OATH Administrative Law Judge Tynia D. Richard presided at a Civil Service Law §72 disability proceeding initiated by the appointing authority. The employer alleged that the individual was “mentally unfit to perform the duties of his position.” The employee denied the allegation.

Judge Richard found the evidence supported the medical opinion of a board certified psychiatrist that the individual was unfit to perform the duties of his position due to a psychotic condition, known as delusional disorder of a persecutory nature, that impeded his ability to make basic engagements with reality and recommended that the employee be placed on leave pursuant to Civil Service Law §72.

The employer subsequently submitted an e-mail requested an “expedited decision” based on the employee’s conduct after the hearing had been closed. The employee’s attorney sent an e-mail objecting to the employee’s post hearing conduct being made a part of the record in this case so as to form the basis for expediting a decision.

The ALJ advised the parties that “it was not proper to put additional facts before me as the record of the case is closed.”  Judge Richard also noted the procedure that the parities were to use in seeking an expedited decision. However, said Judge Richard, a formal request for an expedited decision was never filed.

Although Judge Richard entered the e-mails into the record, she advised the parties that she had not taken the new allegations into account in her analysis of the case nor in making her determination.

The determination: Judge Richard found that the employee was unfit to remain in his position and recommended that he be placed on leave pursuant to §72 of the Civil Service Law, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

 http://archive.citylaw.org/oath/11_Cases/14-1233.pdf
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Filing fraudulent documents to obtain a benefit

Filing fraudulent documents to obtain a benefit

OATH Index No. 229/14

A New York City correction officer was charged with tendering fraudulent documents to obtain subsidized housing benefits, establishing residency in another state for purposes of engaging in unauthorized outside employment, and engaging in unauthorized outside employment.

OATH Administrative Law Judge Astrid B. Gloade found that the officer underreported her income to obtain Section 8 housing benefits*and that although this misconduct   occurred when the employee was “off-duty” an employer may discipline an employee for off-duty misconduct where there is sufficient nexus between the conduct to be

sanctioned and the employee’s job position, citing Villanueva v. Simpson, 69 N.Y.2d 1034.

Judge Gloade also found the the employee had an unauthorized job while on a leave of absence from the Department.

The residency charge was dismissed by the ALJ, who found that the employer failed to prove that the correction officer established residency in another state for purposes of engaging in outside employment..

Judge Gloade, however, recommended that the correction officer be terminated from her position on the basis of charges that were proven by the agency.

* The employee “plead guilty to disorderly conduct (Penal Law §240.20) and agreed to pay restitution in the amount of $19,127 to the federal government within one year” with respect to her obtaining Section 8 housing benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-229.pdf

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The doctrine of respondeat superior

The doctrine ofrespondeat superior

Selmani v City of New York, 2014 NY Slip Op 02764, Appellate Division, Second Department

In this action the Appellate Division sets out the basics regarding the doctrine of respondeat superior.

Essentially, said the court, the doctrine of respondeat superior will hold an employer vicariously liable for torts committed by an employee acting within the scope of the individual’s employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the individual’s employment.

The Appellate Division indicated that:

1. "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business'.”

2. "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment."

3. “Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the [employee’s] actions cannot be said to fall within the scope of employment.”

4. “In instances where vicarious liability for an employee's torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained.”

In this actions certain patrons at restaurant alleged that the individual defendants named in their compliant, who were members of the employer’s Fire Department, entered the restaurant with coworkers, including supervisors. The group of firefighters had allegedly come from a Fire Department annual dinner held at another location and continued celebrating and drinking at the restaurant.

One of the injured plaintiffs allegedly accidentally spilled a drink on a firefighter and was allegedly attacked and assaulted by the named defendant-firefighters. The employer moved for summary judgment dismissing the complaint insofar as asserted it. The Supreme Court granted the motion.

The Appellate Division modified the Supreme Court’s order by deleting the provision granting that branch of the employer’s motion for summary judgment dismissing the causes of action alleging negligent hiring, supervision, training, and retention insofar as asserted against them. The court, instead, substituted a provision denying that branch of the motion; as so modified, affirmed the Supreme Court’s order.

The Appellate Division explained that although Supreme Court properly granted” the employer’s motion for summary judgment dismissing the causes of action alleging vicarious liability, as the employer had established its prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of named defendant-firefighters was not within the scope of their employment,* it failed to rebut the plaintiffs’ claims of alleged “negligent hiring, supervision, training, and retention,” and thus the employer did not establish its entitlement to summary judgment as a matter of law on that branch of the plaintiffs' complaint.

The employer, said the court, failed to submit any evidence demonstrating that it did not know or have reason to know of defendant-firefighters’ alleged “propensity for assaultive conduct” nor did the employer submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs' injuries.

* This finding suggests that the defendant–firefighters can neither claim “defense nor indemnification” from their employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02764.htm

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