October 04, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014
Click on text highlighted in color to access the full report

The Comptroller said that “In today’s fiscal climate, budget transparency and accountability for our local communities is a top priority by auditing municipal finances and operations ... my office continues to provide taxpayers the assurance that their money is being spent appropriately and effectively.”

Despite maintaining comprehensive, accurate and timely records, the treasurer did not file the district’s 2012 annual financial report with the Office of State Comptroller until April 2014. In addition, district officials used a request for proposal process to award the contract for auditing the district’s 2012 and 2013 financial statements. However, the audits have not been performed.

The board did adopt realistic and structurally balanced budgets based on historical trends. As a result, the village ended 2011-12 with an unplanned net operating deficit of $372,471. In addition, village officials need to improve their oversight of the budget. Improved monitoring will enhance their ability to react to external influences such as economic downturns and emergencies.

The board did not establish adequate controls to ensure the district’s financial activity was properly recorded and reported and that district money was adequately safeguarded. The board did not adequately segregate the secretary-treasurer’s duties, provide any additional oversight or implement other compensating controls when segregating duties was not practical.

While the treasurer does maintain up-to-date and accurate accounting records, the president and executive committee did not provide adequate oversight of the treasurer’s activities. Department officials were unaware of the need for additional controls over the cash disbursement process, such as an annual audit.

City officials did not ensure that internal controls over payroll processing provided for adequate segregation of duties. The payroll clerk performed all significant phases of the payroll process. She entered new employees, pay rates and employees’ time worked from their time records into the computerized payroll system, calculated withholding adjustments and finalized the payrolls.

The board does not provide adequate oversight of the department’s financial activities. The treasurer makes all deposits, disburses cash without the board’s prior approval, performs all record keeping functions and prepares bank reconciliations without independent oversight. Further, the board does not audit the individual claims for accuracy or examine them for supporting documentation.

Village officials do not adequately monitor water operations. Although village officials were aware of the aging infrastructure and potential for leaks, no one determined whether water was unaccounted-for. For example, the village has unaccounted-for water totaling 36.7 million gallons annually, or approximately 60 percent of the water produced. Village officials do not have written policies or procedures requiring the reconciliation of the water produced by the water system with the water billed to customers.

Counties can improve their controls to better ensure that hospitals and providers are charging appropriate rates. In seven (Chautauqua, Clinton, Erie, Jefferson, Orleans, Oswego and Rensselaer) of the eight counties audited, county officials did not pay the appropriate Medicaid diagnostic related group rates on 75 percent of the inpatient hospital claims.

October 03, 2014

Posted by Justia: Weekly Opinion Summaries – Labor and Employment Law

Posted by Justia: Weekly Opinion Summaries – Labor and Employment Law
Weekly Summaries Distributed October 3, 2010

Court: U.S. 1st Circuit Court of Appeals
Docket: 13-1685

Judge: Selya

At issue in this case was a popular restaurant in Puerto Rico owned by Lorraine Enterprises, Inc. The corporation was owned by Defendant Lorraine Lago and her husband. The Secretary of Labor sued the restaurant, Lago, and the restaurant’s general manager, alleging that Defendants were liable for violating the Fair Labor Standards Act’s (FLSA) minimum wage, overtime, and recordkeeping requirements. Specifically, the Secretary alleged that the restaurant took advantage of the reduced federal minimum wage established by the FLSA for the restaurant industry without complying with the concomitant requirements. The district court granted summary judgment for the Secretary and, thereafter, denied Defendants’ motion to alter or amend the judgment. The First Circuit affirmed, holding that the district court (1) did not err in determining that no infringement of Defendants’ due process rights had occurred; (2) did not err in granting summary judgment on the minimum wage claim; and (3) did not abuse its discretion in refusing to vacate the judgment as to the individual defendants.

Court: U.S. 1st Circuit Court of Appeals
Docket: 13-2307

Judge: Lynch

The “B Prong” of the Massachusetts Independent Contractor Statute, Mass. Gen. Laws ch. 149, 148B(a)(2), requires that workers perform a service outside the usual course of the employer’s business to be classified as independent contractors. The Massachusetts Delivery Association (MDA) filed an action for a declaration that the B Prong is preempted by the Federal Aviation Administration Act (FAAAA), and for an injunction barring the Attorney General from enforcing section 148B(a)(2) against the MDA’s members. The FAAAA preempts state laws that “relate to” the prices, routes, or services of a motor carrier “with respect to the transportation of property.” The district court held that the FAAAA does not preempt section 148B(a)(2). The First Circuit reversed, holding that the district court incorrectly interpreted the preemption test under the FAAAA and incorrectly applied the test to section 148B(a)(2). Remanded.

Court: U.S. 2nd Circuit Court of Appeals
Docket: 13-2705

Judge: Livingston

The EEOC filed suit against the Port Authority under the Equal Pay Act of 1963 (EPA), 29 U.S.C. 206(d), alleging that the Port Authority paid its female nonsupervisory attorneys at a lesser rate than their male counterparts for "equal work." The district court granted the Port Authority's motion for judgment on the pleadings under Rule 12(c). The court affirmed, concluding that the complaint failed to state a plausible claim for relief where the EEOC failed to allege any facts concerning the attorneys' actual job duties and, therefore, the court had no basis from which to draw a reasonable inference that the attorneys performed "equal work."

Court: U.S. 8th Circuit Court of Appeals
Docket: 13-2592
Judge: Loken

Plaintiff, a pathologist, filed suit against Avera, alleging that Avera violated federal and state laws for terminating a Services Agreement. Plaintiff filed suit under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq.; the Family Medical Leave Act (FMLA), 29 U.S.C. 2617 et seq.; and the South Dakota Human Relations Act (SDHRA), S.D. Codified Laws 20-13-1 et seq. The court affirmed the district court's grant of summary judgment dismissing all of plaintiff's claims because plaintiff was an independent contractor of St. Luke's Hospital under his Services Agreement and not an employee.

Court: U.S. 9th Circuit Court of Appeals
Docket: 12-17780

Judge: Fletcher

Peabody mines coal on the Hopi and Navajo reservations in Arizona under leases with the tribes. The EEOC filed suit alleging, among other things, that Title VII of the Civil Rights Act, 42 U.S.C. 2000e-8(c), prohibits the tribal hiring preference contained in the Peabody leases. The district court granted summary judgment against the EEOC on the merits. The court affirmed, concluding that the Navajo hiring preference in the leases at issue is a political classification, rather than a classification based on national origin, and therefore does not violate Title VII. Further, the EEOC waived on appeal its record-keeping claim and the district court acted within its discretion in denying the EEOC's motion to supplement the record.

Court: Alabama Supreme Court
Docket: 1111554

Judge: Murdock

The State Comptroller, Thomas L. White, Jr., appealed a preliminary injunction entered in response to an action for declaratory and injunctive relief brought by Karen John, the Alabama Education Association ("the AEA"), Randy Hebson, and the Alabama State Employees Association ("the ASEA"). This was the third time a case involving the question of deductions by the comptroller from a State employee's salary for payment of contributions and dues has come before the Supreme Court in recent months. The comptroller executed payroll deductions for dues from State employees who were members of the AEA and the ASEA. On June 29, 2012, the comptroller issued a "memorandum" to "Affected Organizations" regarding "Act 2010-761 Guidelines (State Comptroller Payroll Deductions, Revised June 2012)." The memorandum also contained a sample "Act 2010-761 Certification Form for Organizations:" if the organization wanted to receive salary deductions from State employees, the form required an individual from the organization to provide a notarized signature and to certify under penalty of being barred from receiving deductions that the organization would "not use any portion of the membership dues collected by payroll deduction from the pay of its members who are State employees for political activity as that term is defined in [the Act]" and that the organization would "provide to the State Comptroller a detailed breakdown of the expenditure of those membership dues not later than the deadline, and using the forms, prescribed by the Comptroller from time to time." The comptroller sent copies of the memorandum to the AEA, the ASEA, and other organizations that were receiving dues from State-employee members via salary deductions. The ASEA submitted its certification to the comptroller, along with a letter from its counsel, stating, in part, that the organization submitted the certification "under protest and without waiving any of its rights as they relate to any ongoing litigation concerning [the Act], or related to the rules and regulations promulgated in your 'Memorandum to Affected Organizations.'" The AEA declined to submit a certification form and thus was deemed ineligible to receive dues via payroll deductions. On August 17, 2012, the AEA, AEA member and State employee Karen John, the ASEA, and ASEA president Randy Hebson sued White in his official capacity as comptroller and the "Office of the State Comptroller" seeking a judgment declaring that the guidelines were void because they had been promulgated without following the procedures required in the Alabama Administrative Procedure Act. The Supreme Court reversed: plaintiffs' action was "due to be dismissed"insofar as it purported to name "the Office of the State Comptroller" as a defendant, and the circuit court was instructed to dismiss the action in that regard. Furthermore, the Court found the circuit court erred in issuing the injunction as plaintiffs did not meet their burden for injunctive relief. The case was remanded for further proceedings.

Court: Alabama Supreme Court
Docket: 1121301

Judge: Murdock

Madeline Nelson and 25 other individuals formerly employed as nontenured teachers or probationary classified employees in the Mobile County Public School System appealed the dismissal of their action against the members of the Board of School Commissioners of Mobile County -- Ken Megginson, Judy P. Stout, Reginald A. Crenshaw, Levon C. Manzie, and William Foster -- and against the superintendent of the school system, Martha Peek. In 2009, the plaintiffs filed an action against the Board of School Commissioners of Mobile County which was voluntarily dismissed without prejudice three years later in light of the Supreme Court's decision in "Board of School Commissioners of Mobile County v. Weaver," (99 So. 3d 1210 (Ala. 2012)). In 2012, the plaintiffs refiled their action , alleging that their employment was terminated "pursuant to a reduction-in-force implemented by Defendants in response to alleged financial constraints." The plaintiffs further alleged that the failure to rehire them by the conclusion of the following school year was a violation of a written policy of the school system. The circuit court granted defendants' motion to dismiss the complaint: "[t]his action was brought more than three (3) years from the date of accrual. All of the Plaintiffs' claims for mandamus, declaratory or injunctive relief would be barred by the two (2) year statute of limitations set out in 6-2-38(l). Finally, any of the Plaintiffs' claims for backpay or other monetary relief would be barred by the same two (2) [year] statute of limitations under 6-2-38(m)." On appeal to the Supreme Court, plaintiffs primarily contended that the circuit court erred in concluding that their claims were barred by the applicable statute of limitations because they stated a breach-of-contract claim, which had a six-year statute of limitations. Upon review, the Supreme Court concluded that the plaintiffs stated a claim of breach of contract and that therefore their claim was subject to a six-year, rather than a two-year, statute of limitations. Accordingly, the circuit court's dismissal was reversed, and the case remanded for further proceedings.

Court: Arkansas Supreme Court
Docket: CV-13-962

Judge: Hart

Anita Cooper, who was employed as principal of the Oark, Arkansas schools, was removed from her duties as principal. The Superintendent of the Jasper School District No. 1 of Newton County listed nine reasons as bases for the termination. The District’s Board of Directors then terminated Cooper’s employment. The circuit court reversed the Board’s decision, reinstated Cooper to her position, and awarded Cooper $64,998 in damages. The Superintendent and District appealed. The Supreme Court affirmed, holding (1) the circuit court did not err in finding that Defendants failed to comply with the Teacher Fair Dismissal Act; (2) the circuit court did not err in concluding that the contract in the case at bar created a property right in Cooper’s position as principal of the Oark schools; and (3) the circuit court’s award to Cooper was neither excessive nor amounted to an award of “double retirement.”

Court: Mississippi Supreme Court
Docket: 2013-CA-00369-SCT

Judge: Dickinson

Lacie Smith worked for Express Check Advance of Mississippi, LLC. A condition in her employment papers was that she agreed to submit “any employment-related dispute” to arbitration. Later, in response to her termination, Smith sued Express Check in circuit court. The trial judge compelled arbitration and Smith appealed. Finding no reversible error, the Supreme Court affirmed.

Court: New Hampshire Supreme Court
Docket: 2013-062

Judge: Dalianis

Petitioner Scott Anderson appealed a superior court order granting summary judgment to respondents, the Executive Director of the New Hampshire Retirement System (NHRS) and the State, and denying summary judgment to Anderson and three other petitioners. Anderson was a retired Plaistow police officer who was a member of the NHRS, and the only petitioner who appealed. After retiring, he worked part-time as a police officer in Plaistow, Atkinson, and Hampstead. When he retired, RSA 100-A:1, XXXIV provided that "[p]art-time," for the purposes of employing a NHRS retiree meant, "employment by an [NHRS] employer" of no more than "32 hours in a normal calendar week," or if the work hours in some weeks exceeded thirty-two hours, then no more than "1,300 hours in a calendar year." Anderson understood that provision "to mean [he] could work potentially up to 32 hours per week for Plaistow, up to 32 hours per week for Atkinson, and up to 32 hours per week for Hampstead." In 2012, the legislature amended RSA 100-A:1, XXXIV to provide that "[p]art-time," for the purposes of employing a NHRS retiree, "means employment during a calendar year by one or more employers of the retired member which shall not exceed 32 hours in each normal calendar week," or if the work hours in some weeks exceed thirty-two hours, then no more than 1,300 hours in a calendar year. In August 2012, Anderson and three other NHRS retirees petitioned for declaratory and injunctive relief. Anderson contended that to apply the 2012 amendment to him violated Part I, Article 23 of the New Hampshire Constitution. Specifically, he asserted that, as a result of the 2012 amendment, he would be "restored to service" under RSA 100-A:7 (2013) and, thus, lose his retirement benefits if he worked more than "[p]art-time" as defined in RSA 100-A:1, XXXIV. Under RSA 100-A:7, when a retiree is "restored to service," his "retirement allowance shall cease," and he "shall again become a member of the [NHRS] and . . . shall contribute" to that system. Anderson contended that the 2012 amendment substantially impaired his vested right because its effect is to restore him to service if he works more than thirty-two hours per week or 1,300 hours per year for any combination of NHRS employers, even if he did not work full-time hours for any single NHRS employer. Thereafter, the petitioners moved for summary judgment, and the State cross-moved for summary judgment. The trial court ruled in the State's favor, and Anderson's appeal followed. Finding no reversible error, the Supreme Court affirmed.

Court: New Hampshire Supreme Court
Docket: 2013-076

Judge: Dalianis

The New Hampshire Department of Administrative Services appealed a superior court order granting the cross-motion for summary judgment filed by petitioner William Bovaird, and denying the Department's motion. The New Hampshire Department of Health and Human Services (DHHS) employed petitioner as an Operations Officer I, Labor Grade 20, until it laid him off in 2009. The Department then placed petitioner on its statewide reduction in force list (RIF List). At the time, Chapter 144:65, Laws 2009 (the 2009 Law) governed the rehiring of laid-off state employees. The Department used the RIF List to place qualified laid-off employees into state positions as they became vacant. After petitioner was laid off, a Supervisor III, Labor Grade 23 position became available. According to the Department, no laid-off employees on the RIF List were eligible for the Supervisor III position; therefore, the Department released the position back to DHHS to be filled by an open-recruitment process. Petitioner applied for, and was eventually hired to fill, the Supervisor III position. In August 2012, petitioner requested that the Department restore his previously accumulated and unused sick leave, his prior seniority date, and his leave accrual rates, and that it reinstate his longevity pay. The Department denied the request. Petitioner then filed a petition for declaratory judgment and injunctive relief to require the Department to recognize him as a "recalled employee," rather than as a new hire, and to award him his benefits. The parties filed cross-motions for summary judgment. On appeal, the parties disagreed about whether the petitioner was "recalled" or "rehired" into the Supervisor III position. Petitioner argued that, because he "returned to work performing his prior duties with the same employer," there was "no rational reason to find that he was not" recalled and, thus, entitled to the benefits of a recalled employee. The Department argued that petitioner was not recalled because there are "no facts in the record regarding recalling" the petitioner and because he was not hired into the same classification. The parties also disputed the trial court's interpretation of the 2009 Law. The Supreme Court agreed with the Department that petitioner was rehired and not recalled. To be recalled, petitioner would have had to return to a position in the same classification as the position he held prior to his lay off: Operations Officer I, Labor Grade 20, instead of Supervisor III, Labor Grade 23. With such differences, petitioner did not return to the same classification, and, therefore, he was not recalled. With regard to the 2009 Law, the Supreme Court surmised that if the legislature had disagreed with the Department's longstanding interpretation, it could have altered the language of the 2009 Law. Such a change did not occur. Therefore, under the 2009 Law, the Department was not required to rehire laid-off employees from the RIF List into promotions, even if the employees meet the minimum qualifications for the position. Petitioner contended the legislative history of the 2009 Law mandated the opposite conclusion. Because the Supreme Court determined that the 2009 Law did not require the Department to rehire laid-off employees into promotions, it also conclude that the trial court erred in determining that petitioner was entitled to his previously accumulated and unused sick leave, an adjustment of his seniority date, and the other aforementioned benefits.

Court: North Dakota Supreme Court
Docket: 20140021

Judge: Kapsner

Michael Crocker appealed the grant of summary judgment that dismissed his personal injury claim against Werner Enterprises, Inc. Crocker argued Werner was vicariously liable for Alexander Morales-Santana's negligent operation of a semi-tractor and trailer under the statutory employee doctrine and because Werner retained control over Morales-Santana's work. Finding no reversible error, the Supreme Court affirmed.

Court: Ohio Supreme Court
Docket: 2013-0608

Judge: Per Curiam

Claimant was terminated from her employment for violating the written attendance policy in her union contract after she was injured at work. Thereafter, Claimant filed for temporary-total-disability (TTD) compensation for her work-related injury. The Industrial Commission concluded that, per State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., Claimant’s termination was a voluntary abandonment that barred payment of TTD compensation. Claimant then filed a complaint for a writ of mandamus. The court of appeals denied the writ, concluding that the evidence supported the Commission’s finding of voluntary abandonment. The Supreme Court affirmed, holding that Claimant failed to establish that the Commission abused its discretion when it denied her request for TTD compensation.

Court: Washington Supreme Court
Docket: 89671-2

Judge: Yu

In 2009, Kristine Failla, a Washington resident and experienced salesperson, was looking for a job she could perform from her Gig Harbor home. She e-mailed Kenneth Schutz looking for such a position. Schutz was the founder and chief executive officer (CEO) of FixtureOne Corporation, which sells fixtures, casework, and displays for use in retail stores. Both FixtureOne and Schutz are based in Pennsylvania, and at the time of Failla's email, FixtureOne had no physical presence or customers in Washington.
FixtureOne hired Failla as an account executive. In December 2010, Failla requested a promotion and a raise. Schutz agreed and promoted her to FixtureOne's vice president of sales, increased her yearly salary. Although there were outstanding commissions owed, Failla accepted the promotion and salary increase based on the assurances that the commissions would be paid. Schutz provided a draft employment agreement for Failla to sign in connection with the promotion. Among other things, the agreement contained a provision that it would be interpreted in accordance with Pennsylvania law. Failla proposed revisions to the agreement, but for reasons unknown neither Failla nor Schutz ever signed it. Failla continued working for FixtureOne from her Washington home until May 2011. She received regular paychecks, and the only issue in this case was the sales commissions owed to her that were not paid. In May 2011, Schutz emailed Failla to tell her that FixtureOne was "clos[ing] its doors" and ended her employment the following day. He assured Failla that FixtureOne would "pay your commissions and expenses asap in the next several weeks." For two months following her termination, Schutz returned Failla's requests for payment with various explanations as to why the commissions remained unpaid. Schutz eventually advised Failla that she would not receive a commission check and for the first time disputed whether such commissions were even owed. Failla filed suit against FixtureOne and Schutz for the wilfull withholding of wages, including an allegation that Schutz was individually liable under Washington's wage laws. Failla served Schutz in Pennsylvania but was unable to serve FixtureOne. Consequently the suit proceeded against Schutz alone. Failla and Schutz cross moved for summary judgment. Schutz argued that the trial court lacked personal jurisdiction because he did not have the requisite minimum contacts with the state, and even if Washington could exercise jurisdiction over him, there were genuine issues of material fact preventing the entry of summary judgment. The trial court concluded it had personal jurisdiction and denied Schutz's summary judgment motion. The court granted summary judgment to Failla, awarding double damages. The Court of Appeals reversed, holding that Washington's long-arm statute did not reach Schutz because the employment relationship between Failla and FixtureOne was inadequate to confer jurisdiction over Schutz. The Washington Supreme Court disagreed with the appellate court, and reversed.

Bd. of Educ. of Webster County v. Hanna 
Court: West Virginia Supreme Court of Appeals 
Docket: 13-1086 Judge: Ketchum
Dawn Hanna worked for the Board of Education of Webster County as a teacher from 1989 until 2012. After fundraiser proceeds went missing, Hanna was informed that she would be charged with felony embezzlement but that she could avoid prosecution by resigning from her position and paying back the missing funds. Pursuant to this discussion, Hanna resigned from her position. Hanna subsequently applied for unemployment benefits. The Board of Review of WorkForce West Virginia concluded that Hanna was disqualified from receiving unemployment compensation benefits because she voluntarily quit her job. The circuit court reversed, finding that Hanna acted under duress and that her decision to resign was not voluntary. The Supreme Court reversed, holding that WorkForce was not clearly wrong when it found that Hanna resigned voluntarily, and therefore, the circuit court erred in reversing WorkForce’s findings. 

Disciplinary charges based on employee’s failure to appear at the disciplinary hearing

Disciplinary charges based on employee’s failure to appear at the disciplinary hearing
OATH Index No. 1633/14

An employee was charged with being absent without leave and insubordinate when she mistakenly appeared for an OATH hearing at 10:00 a.m. instead of 2:00 p.m.

OATH Administrative Law Judge Kevin F. Casey recommended dismissal of the charges because the proof did not show that the employee was given a clear directive to report to her worksite in the morning and for trial in the afternoon.

Judge Casey found there was some miscommunication and the employee had made “an honest mistake” that did not constitute misconduct.  

However, if the employee’s absence is determined to be deliberate in an effort to avoid participating in the hearing, the hearing may be conducted in absentia after the charging party has made a good faith effort to locate the individual and ascertain if his or her absence is reasonable under the circumstances.

In such cases the charging party is required to prove the alleged acts of misconduct and, or, incompetence as though the employee were present. Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from challenges to the charging party going forward with a disciplinary hearing held in absentia. 

October 02, 2014

Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.
Matter of the Town of Dresden, PERB decision U-7383

The genesis of this decision was the Town Supervisor refusal to sign the negotiated Taylor Law agreement because he contended that he lacked the authority to reach a final agreement without the prior approval of the Town Board. As a result, the Union filed an improper practice charge with PERB.

Distinguishing between the different roles played administrators and legislators in Taylor Law negotiations. PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process.* Thus an agreement is between the administrative and the Union negotiating teams is binding on the parties.

However, certain provisions set out in the agreement may require the approval by the legislative body having jurisdiction such as a County Legislature, a Town Board or a School Board before they may take effect  Typically these provisions requiring the appropriation of funds necessary to implement the terms and conditions of the agreement and such terms and conditions agreed upon are not enforceable until the necessary legislative action is taken.

§204-a.1 of the Civil Service Law provides that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:

"It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."
PERB has also determined that a legislative body may not unilaterally reserve the power to ratify the entire agreement although the parties may agree that the result of their negotiations will be subject to the legislative body's ratification.

Further, in the event members of the legislative body actually participates in the negotiations, such members' agreements are binding as to them and such persons cannot later vote against the agreement on the theory that they are now wearing their "legislative" hat as PERB’s decision in Matter of Jeffersonville-Youngsville CSD, U-6341, demonstrates.

In this instance the School District’s team consisted of the School Superintendent and three School Board members. The District’s negotiating team and the Union’s negotiating teams had agreed upon all terms of a proposed collective bargaining agreement except a "2nd year salary offer." The District’s team obtained authority to place an additional $2,000 "on the table" from the seven member School Board. However, during the final day of negotiations the Union accepted a "2nd year salary offer." offer that provided for more money than the additional $2,000 earlier authorized by the Board.

Although the Union's member subsequently ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification."

When the Superintendent refused to execute a "memorandum agreement," the Union filed an improper employer practice claim with PERB. PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements the District’s team had reached with the Union.

In addition, PERB indicated that as to the two Board Members on the District’s negotiating team voting against ratification in their "Board Member" capacity, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.

As noted above, the Taylor Law provides that any provision of an agreement that requires action by the relevant legislative body such as the allocation of necessary funds is not to take effect until the legislative body concerned acts to provide the required monies. In this instance presumably all three "District negotiating team/Board members" are required to vote in favor of the allocation of additional funds ultimately agreed upon by the District and employee negotiating teams consistent with their "District team position" in their capacity as a member of the School Board.

The Jeffersonville-Youngsville CSD decision illustrates the " unintended consequences" that could result when a member of the relevant legislative body serves on the employer's negotiating team.. 

* Civil Service Law §201.12 provides as follows: 12. The term "agreement" means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval." [See, also, Civil Service Law §204-a.1]

October 01, 2014

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second Department

The Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work. The employee organization filed an improper practice charge with the Public Employment Relations Board [PERB] and PERB issued a decision requiring the Town to [1] "restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008," and [2] “make whole unit employees for the extra expense incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest as the maximum legal rate.”

The Appellate Division issued a judgment dated March 13, 2013 confirming PERB’s determination.* The Town appealed and the Court of Appeals modified the Appellate Division’s decision and judgment** “with directions to remand the matter to the New York State Public Employment Relations Board for further proceedings in accordance with its opinion.

The Court of Appeals had determined that the remedial order issued by PERB in this matter was "unduly burdensome under the circumstances, and d[id] not further the goal of reaching a fair negotiated result." 

The Court of Appeals explained that courts review “the remedies imposed by PERB with deference to its expertise” and courts should sustain a remedy fashioned by PERB for an improper practice “if reasonable.” However, said the court, “[i]t is for the courts to examine the reasonable application of PERB's remedies.”

In this instance the Court of Appeals determined PERB's remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” However a PERB injunction was not sought to preserve the status quo ante, and” the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees.” Accordingly, PERB order, said the court, would force the Town to invest significant taxpayer dollars to replace these vehicles, holding that this would be “unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.”

The court cited Matter of Manhasset Union Free School Dist., 61 AD3d 1231, in explaining its ruling.

In Manhasset the Appellate Division held that enforcing a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval. The Appellate Division then remitted the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the school district to purchase a whole new fleet of vehicles with an uncertain future."

As to the Islip appeal, the Appellate Division held that “in light of the determination of the Court of Appeals, we remit the matter to PERB for further proceedings in accordance with that determination.”

* Town of Islip v PERB, 104 AD3d 778.

** Town of Islip v PERB, 23 NY3d 482

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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