Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff

Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff

Matter of the Arbitration between Hudson Val. Community Coll. and Hudson Val. Community Coll. Faculty Assn., 2014 NY Slip Op 07240, Appellate Division, Third Department

Christine Raneri, a part-time adjunct professor employed by the Hudson Valley Community College (HVCC), was appointed as a full-time probationary teacher by the College in 2007. In March 2012, HVCC notified Raneri that “her position had been retrenched,” and that her employment would end in August 2012.

The Hudson Valley Community College Faculty Association [Association] submitted a grievance on Raneri's behalf challenging HVCC's decision to retrenchment her from the position. HVCC's president denied the grievance following a hearing and the Association served a demand for arbitration on the college.

HVCC and the County of Rensselaer commenced an Article 75 CPLR action seeking a permanent stay of arbitration [proceeding No. 1]. The Association answered and then cross-petitioned to compel arbitration. The Association also initiated an Article 78 action, proceeding No. 2 against the County, the Board of Trustees of HVCC and others challenging Raneri's retrenchment on the merits. HVCC moved to dismiss the CPLR Article 78 petition.

Supreme Court granted HVCC’s petition in proceeding No. 1, permanently staying arbitration, denied the Association’s cross petition in proceeding No. 1 to compel arbitration, and dismissed the Association’s CPLR Article 78 proceeding (proceeding No. 2).

In its appeal from Supreme Court's ruling concerning proceeding No. 1 the Association contended that Supreme Court erred in determining that the issue of retrenchment was excluded from arbitration by the terms of the CBA and thus was incorrect in permanently staying the arbitration.

The Appellate Division disagreed with the Association’s claim, holding that the sole issue before Supreme Court was whether the CBA reveals that the parties agreed to arbitrate this grievance. Noting that the CBA provides that grievances — defined as claims "based upon the interpretation or application of" the CBA — are generally subject to arbitration, the court pointed out that the controlling CBA also provided that "[m]atters relating to [HVCC's] decision to retrench, fill, refill, establish and/or re-establish bargaining unit positions shall not be arbitrable hereunder”. The CBA further provided that if such a staffing issue is grieved, “the decision of the [HVCC] President or designee shall be final and binding and shall constitute the exclusive remedy thereunder."

The Appellate Division, agreeing with Supreme Court, said that this language clearly and “unambiguously manifests the parties' intention to exclude the subject matter of retrenchment from arbitration.”

Turning to the Association’s challenge to the Supreme Court’s dismissal of its Article 78 petition, the Appellate Division said that in reviewing such a claim, a court may not substitute its judgment for that of the administrative body and must confirm the challenged determination unless the body "acted in excess of [its] jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of [its] discretionary power," citing Pell v Board of Educ, 34 NY2d 222.

The court rejected the Association’s argument that the reason given by HVCC to Raneri for the retrenchment — the discontinuance of a particular program — was pretextual.

Although the Association contended that minutes from a curriculum committee meeting held in the same month as the retrenchment revealed that the faculty was advised that the discontinuance would have no impact on student numbers or faculty hours, the Appellate Division noted that affidavits in the record also reveal that, for economic reasons, HVCC was reducing the number of sections in Raneri's teaching area at the time in question and increasing the number of students in each section.

The Association also claimed that the retrenchment violated the CBA in that the positions of two faculty members in Raneri's teaching area who had less seniority "were not retrenched." The court said that the record showed that both of these instructors were ASE-certified and were scheduled to teach a full load of courses for which this certification was required — and which Raneri, not being ASE-certified, could not teach — in the fall of academic 2012.

Thus, the Appellate Division concluded, "the retrenchment of Raneri's position" was in conformity with a requirement in the CBA that such actions "shall be made in inverse order of seniority provided a faculty member has the qualifications to teach the courses to be taught" (emphasis in the decision)^.*

Regarding the Association’s claim that an incumbent serving in an adjunct faculty should be laid off first, the court noted that the adjunct faculty member also possessed ASE certification and taught classes for which such certification was required; thus, retrenching his position would not have prevented Raneri's being laid off

As the record revealed that assignments were made for legitimate reasons having to do with the instructors' qualifications and other responsibilities, the Appellate Division said that “Supreme Court did not err in determining that HVCC's decision was not arbitrary or capricious, an abuse of discretion or in violation of lawful procedure.”

* The Appellate Division said that it agreed with Supreme Court's view that “this provision requires a faculty member to be qualified to teach upcoming classes, rather than those for which the faculty member's qualifications may have sufficed in previous years.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07240.htm

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Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

2014 NY Slip Op 07270, Appellate Division, First Department

Among the issues considered in this appeal was the teacher’s [Teacher] claim that she had suffered retaliation as a result of her having sued the New York City Department of Education [NYCDE] and having made statements to the media.

The Appellate Division held that neither Teacher's lawsuit nor her statements to the media constituted protected speech under the First Amendment or Article I, §§8 and 9 of the New York Constitution “as they primarily concern personal grievances, rather than matters of public concern.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern. In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution. As the court explained in Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, a public employee’s speech is not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

As to Teacher’s claim that she had suffered age discrimination within the meaning of the State and City Human Rights Laws, respectively Executive Law §290 et seq. and the Administrative Code of City of NY §8-101 et seq., the Appellate Division said that her allegations that she was 51 years old and was treated less well than younger teachers were insufficient to support her claims.

Addressing Teacher’s hostile work environment allegations, the court said that these claims also fail “because [NYCDE’s] alleged behavior amounts to "no more than petty slights or trivial inconveniences."

In Clauberg v State of New York, 95 AD3d 1385, the Appellate Division explained that “To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animusAll of the circumstances must be considered, including "the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”

In a case involving similar “free speech - retaliation” issues, Golodner v Berliner, USCA, 2^nd Circuit, Docket #12-1173, Golodner filed a 42 USSC 1983 action against the City of New London  and two City officials, alleging the defendants retaliated against him for exercising his rights under the First Amendment when he filed an earlier lawsuit against the City and several of its police officers (“Golodner I”).

The United States District Court for the District of Connecticut held that the speech in Golodner I constituted speech on a matter of public concern protected under the First Amendment, and that Golodner’s right to engage in this form of speech was clearly established at the time of the alleged retaliation. The Circuit Court of Appeals affirmed the district court’s denial of the City's motion for summary judgment and remanded the case for further proceedings.

The "Teacher" decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07270.htm

The Golodner decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/doc/12-1173_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/hilite/
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COLA increases for dollar limitations on benefits and contributions

Retirement plan contributions - limitations on benefits and contributions

Source: The Internal Revenue Service

The Federal tax law places limits on the dollar amount of contributions to retirement plans and IRAs and the amount of benefits under a pension plan. §415 of the Internal Revenue Code requires the limits to be adjusted annually for cost-of-living increases. Interested readers should discuss this with their tax advisor.

Information and a table listing the dollar limitations for 2013, 2014 and 2015, and a number of Internal Revenue Code references, are posted on the Internal Revenue Service’s website at:.

http://www.irs.gov/Retirement-Plans/COLA-Increases-for-Dollar-Limitations-on-Benefits-and-Contributions
 
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