Establishing seniority rights in the course of collective bargaining

Establishing seniority rights in the course of collective bargaining
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department

The Appellate Division held that Steven Bregman and the other plaintiffs [Bregman] in this action had waived their right to seniority credit through their teacher association's collective bargaining agreement with the Board of Education for the East Ramapo Central School District. To this end the court said that Supreme Court should have entered a judgment declaring that the relevant provision of the collective bargaining agreement governing seniority rights and the determination to deny Bregman seniority credit pursuant thereto was not illegal and invalid.

The court noted that such a waiver was not against public policy, as the Board of Education was allowed to establish a separate tenure area for administrators apart from the teaching tenure areas enumerated in 8 NYCRR 30-1.4.and Bregman did not establish that the positions in question constituted "instructional support services" as defined in 8 NYCRR 30-1.1(j).

However, certain “seniority provisions” in a collective bargaining agreement may not be lawful and thus unenforceable as the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, demonstrates. The decision addressed the application of a Taylor Law contract provision dealing with seniority of employees in the classified service in the event of a layoff.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date to be used to determine an individual's service for seniority purposes for layoff under State law.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But both §§80 and 80-a of the Civil Service Law provide that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and thus, in accordance with law, B would have greater seniority than A.

When the City laid off A rather than B, notwithstanding the fact that A had been employed by the City for a longer period than B because B had received his permanent appointment before A was permanently appointed, the Union grieved.

The Union contended that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first. Plattsburgh obtained a court prohibiting submitting the grievance to arbitration.

In the appeal that followed the Appellate Division sustained the City's decision and explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07610.htm

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Some limitations to obtaining information pursuant to New York State's Freedom of Information Law

Some limitations to obtaining information pursuant to New York State's Freedom of Information Law

Miller v New York State Div. of Human Rights, 2014 NY Slip Op 07742, Appellate Division, First Department

The Appellate Division sustained a Supreme Court ruling that the New York State Division of Human Rights did not violate the State’s Freedom of Information Law [FOIL] when it denied Jerald Miller’sFOIL request for certain documents.

Initially addressing a procedural issue, the Appellate Division said that although Supreme Court reviewed the Division’s determination using the "arbitrary and capricious" standard instead of determining whether the denial "was affected by an error of law", the matter need not be remanded since Division correctly determined that FOIL did not require disclosure of the materials sought by Miller.*

As to the merits of Miller’s appeal, the Appellate Division explained that the Division properly withheld the four legal opinions he had requested pursuant to the "intra-agency materials" exemption set out in Public Officers Law § 89[2][g] as these documents were essentially "predecisional memoranda” prepared to assist the Division in its decision-making process and were not final agency determinations or policy. Rejecting Miller’s argument to the contrary, the court said that the opinions neither fell under the exceptions to this exemption set out in Public Officers Law §89[2][g][i]), which is applicable with respect to “statistical or factual tabulations or data” nor Public Officers Law § 89[2][g][ii], which is applicable with respect to “instructions to staff that affect the public."

Citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, the Appellate Division said that three of the four opinions are "specifically exempted from disclosure by state . . . statute" whereby Executive Law §297(8) prohibits the Division from making public information contained in reports obtained by it with respect to a particular person without that individual's consent.

As to Miller’s request for the Division’s "Case Management System Legal Resources Notebook," the court ruled that this was not a record within the meaning of FOIL. The “Notebook,” said the Appellate Division, is not "information" but rather a software application providing the means of accessing information in the Division’s electronic file system. Further, said the court, the Division also properly withheld the user's manual for that application as its disclosure "would jeopardize [the Division’s] capacity . . . to guarantee the security of its . . . electronic information systems."

Finally, the Appellate Division ruled that as Miller “has not substantially prevailed, he is not entitled to attorney's fees and costs pursuant to Public Officers Law §89(4)(c).”

* Where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis.See CPLR 7803[3]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07742.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014

Click on text highlighted in color  to access the full report

Department of Agriculture and Markets: Dairy Inspections (2014-S-16)

The department performed approximately 6,000 inspections at almost 1,400 locations in calendar year 2013. Despite staffing shortages, the department does not have a backlog of safety inspections; all mandated inspections had been completed for 2013. However, the staffing shortfalls have required it to cut back on other activities or goals it also considers important to quality control and safety such as delivery vehicle inspections, plant raw and pasteurized milk sampling, and butterfat testing.

Department of Health: Unnecessary Medicaid Payments for Children at Voluntary Agencies (Follow-Up) (2014-F-5)
An initial audit report issued in September 2012 found that DOH could save millions of Medicaid dollars annually by assessing and modifying certain policies and practices that drive the costs of medical care provided to children placed at voluntary agencies. In a follow-up report, auditors found DOH has made progress in implementing the recommendations made in the initial audit report. Of the report’s five audit recommendations, three were implemented, one was partially implemented and one was not implemented.

Department of Health: Medicaid Program: Overpayments to Managed Care Organizations and Hospitals for Low Birth Weight Newborns (2013-S-57)
Medicaid made $12,378,309 in overpayments for low birth weight payments that did not meet the necessary requirements. For example, Medicaid paid one managed care organization $99,044 for a low birth weight payment based on a reported newborn birth weight of 215 grams. However, the newborn’s actual birth weight was 3,215 grams. Medicaid should have only paid the MCO $3,232. There was an additional $949,681 in potential overpayments for similar claims at high risk of not meeting the billing requirements for supplemental low birth weight claims. Medicaid paid $548,404 in duplicate fee-for-service and managed care low birth weight newborn claims. At the time the audit fieldwork concluded, auditors recovered more than $7 million of the overpayments identified.

Department of Labor: Amusement Park and Fair Ride Safety (2014-S-47)
Auditors conducted site visits at 53 locations across the state covering almost 1,000 rides and found each of the rides being operated at all of the 53 locations had been inspected and permitted as required.

Department of Motor Vehicles (DMV): Driver Responsibility Assessment Program (2013-S-53)
DMV accurately assessed all program fees and either collected these fees or suspended the licenses or the privilege to obtain a license of drivers who did not pay. However, the DMV needs to improve its internal controls over manual adjustments made to the program database by ITS staff.

Metropolitan Transportation Authority: MTA-NYC Transit Medical Assessment Centers (2013-S-33)
On a unit cost basis, auditors determined that Medical Assessment Centers (MAC) run by the MTA to gauge drivers’ health and ability to do their jobs were not more costly than using a contractor that previously performed the work. Auditors also concluded that there are opportunities to attain further efficiencies in the MAC program.

New York City Department of Buildings: Outstanding Violations (Follow-Up) (2014-F-13)
An initial report, issued in December 2011, found that New York City Department of Buildings managers did not have effective systems in place to ensure hazardous violations were resolved quickly. In a follow-up, auditors found the department has made progress in addressing the issues identified in the initial report. Of the four prior recommendations, two have been implemented and two have been partially implemented.

New York State Health Insurance Program: Empire BlueCross BlueShield – Selected Payments for Special Items for the Period April 1, 2011 Through June 30, 2011 (Follow-Up) (2014-F-6)
In an initial report, auditors determined Empire did not have adequate controls to ensure special items were paid according to contract limitations. As a result, Empire made a net overpayment of $119,141 on 33 claims. In a follow-up report, auditors found Empire officials made considerable progress in implementing the recommendations made in the initial audit report. Of the three prior recommendations, two were implemented and one was partially implemented. Empire recovered the overpayments from hospitals, implemented controls to ensure payments for special items are made in accordance with hospital agreements, and made significant progress to ensure that future agreements with hospitals contain language limiting the reimbursement of special items.

Port Authority of New York and New Jersey: Vehicle and Heavy Equipment Purchase Program (Follow-Up) (2014-F-2)
An initial report issued in December 2010 found that the Port Authority generally did not follow required procedures to ensure that the acquisition of vehicles and heavy equipment was justified. In a random sample of 75 items that were purchased for $8.2 million, the Port Authority provided documentation for only two items for $192,279. In addition, the Port Authority included funds for vehicle and equipment rentals in its annual Purchase Program. Auditors also found that the car service contract amounts were excessive compared to the amount the Port Authority actually spent. In a follow-up, auditors found the Port Authority has made some progress in addressing the issues identified earlier. Of the eight prior recommendations, two were implemented, and three were partially implemented and three were not implemented.

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Deleting e-mails sent by the supervisor

Deleting e-mails sent by the supervisor

OATH Index No. 2553/14

The appointing authority filed disciplinary charges against an employee charging the individual with having deleted 27 of the 29 of the e-mails sent by her supervisor without having read them and disobeying an order not to delete e-mails transmitted by the supervisor.

Testimony presented at the hearing included a statement by the employee’s supervisor that he had “received via e-mail notices that [the employee] had deleted without reading … e-mails on which he had copied [the individual].

OATH Administrative Law Judge Astrid B. Gloade found that misconduct was not proven and recommended dismissal of the charges as the evidence in the record did not establish that the employee was given an order to retain the e-mails. Further, explained the ALJ, the appointing authority “failed to prove that even if [the employee] had deleted the e-mails it would have constituted misconduct. Misconduct may be premised on carelessness or negligence, as well as willful or intentional conduct.”

In the words of the Administrative Law Judge: “I find that [the employer] failed to establish by a preponderance of the evidence that [employee] committed misconduct and recommend that the charges be dismissed.”

Among Judge Gloade's finding: 27 of the 29 of the emails were deleted on a Sunday morning and that the appointing authority failed to present any evidence that the employee was at work, or had remotely accessed her e-mail account, at that time.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2553.pdf
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New York State's Veterans Employment Act .

New York State's Veterans Employment Act

Source: NYS Department of Civil Service

The New York State Department of Civil Service has distributed General Information Bulletin No. 14-04 to State Department and Agency Directors of Personnel and Affirmative Action Officers.  Bulletin 14-04 states advises::

“On January 20, 2014 the Executive Law was amended to add Chapter 17-A, also known as the Veterans Employment Act. Pursuant to Section 369 of the Executive Law, it will be the policy of the state to use eligible discharged veterans for temporary appointments in state agencies rather than utilizing temporary employment service companies.

“To this end, it will be the responsibility of the Department of Civil Service to create and maintain a veteran temporary hiring list. The law requires a state agency to select a veteran from the veteran temporary hiring list when making a temporary appointment, provided that the veteran possesses the applicable skills needed for the temporary assignment.”

Veteran Eligibility

“In order to be eligible to participate in the Veterans Temporary Hiring Program an individual must have served on active duty in the United States Army, Navy, Marine Corps, Air Force, Coast Guard or the Reserve Components of the Armed Forces of the United States or served in active military service of the United States as a member of the Army National Guard, Air National Guard, New York Guard or New York Naval Militia, and have been released from such service otherwise than by dishonorable discharge after September 11, 2001.

“We expect that jobseekers will upload their federal form DD-214 (Military Service Record) in the portal and agencies will use this information to verify their eligibility for participation in the program.”

Temporary Appointments

“A state agency must select a qualified veteran from the Veteran Temporary Hiring Program portal when making a temporary appointment to a temporary-hourly budgeted position, provided the veteran possesses the applicable skills needed for the temporary assignment. A qualified veteran willing to accept the position must be selected prior to making an appointment of a non-veteran.”

Additional information is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB14-04.cfm
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Recent ruling by the Appellate Division concerning alleged unlawful discrimination

Recent ruling by the Appellate Division concerning alleged unlawful discrimination

Browne v Board of Educ, 2014 NY Slip Op 07465, Appellate Division, Second Department

Matter of Katz (Commissioner of Labor), 2014 NY Slip Op 07556, Appellate Division, Third Department

The Browne decision:

This decision by the Appellate Division illustrates the shifting of a party’s “burden of going forward” in litigating a complaint alleging unlawful discrimination.

Robert Browne attempted to recover damages for alleged employment discrimination on the basis of gender in violation of Executive Law §296.

The New York City Board of Education [Department] appalled so much of an order of the Supreme Court that denied its motion for summary judgment dismissing the cause of action in which Browne alleged employment discrimination based on gender.

The Appellate Division affirmed the lower court’s ruling explaining that Browne, in opposing the Board’s “prima facie showing that there was a legitimate, raised a triable issue of fact as to whether the Department’s explanation was false, misleading, or incomplete, and thus, a pretext for discrimination.

Accordingly, said the court, the Supreme Court properly denied that branch of the Department’s motion for summary judgment dismissing Browne’s first cause of action, which alleged employment discrimination based on gender.

The Appellate Division also noted that the Department, by failing to raise collateral estoppel as an affirmative defense to Browne’s cause of action alleging employment discrimination either in its pre-answer motion to dismiss or in its answer, waived it, citing CPLR §3211[a][5],[e].

The Katz decision:

The Katz decision by the Appellate Division demonstrates a difficulty that resulted from an individual submitting his or her resignation from the position based on what the court characterized as the employee's “perceived  religious harassment” without first giving the employer an opportunity to investigate the matter.

Roberta B. Katzbegan working for an organization that provides vocational services for persons with disabilities and was being trained to assume the position of director of accounting.

Prior to accepting the job, Katz received the employer's assurance that her religious practices would be accommodated permitting her to leave work at 2:45 p.m. on Friday, December 7, 2012. Her trainer scheduled a meeting on that date from 2:00 p.m. until 3:00 p.m., but told claimant that she could leave at 2:45 p.m. At 2:40 p.m. the trainer told Katz that she needed her to prepare a computer-generated report.

Katz told the trainer she could not complete the report within five minutes and the trainer agreed to prepare it herself. The trainer then asked Katz to log on to her computer to get a password the trainer needed to do the report. At 2:50 p.m. the trainer told Katz to leave.

Katz did not report to work the following Monday, but resigned from her position due to what she perceived was religious harassment.

Katz applied for unemployment insurance benefits and ultimately the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving such benefits because she had voluntarily left her employment without good cause. Katz appealed the Board's ruling.

The Appellate Division affirmed the Board’s determination explaining regardless of the  “inappropriateness of the trainer's actions,” Katz resigned from her position without affording the employer an opportunity to investigate the matter or take corrective action.

Noting that Katz had emailed the employer announcing her resignation the Sunday after the incident and before she even discussed it with the employer's human resources manager, the court ruled that under these circumstances substantial evidence supported the Board's finding that Katz had voluntarily left her employment without good cause.

The Browne decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07465.htm

The Katz decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07556.htm

The Unemployment Insurance Appeal Board is bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct

The Unemployment Insurance Appeal Board held bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct 

2014 NY Slip Op 07414, Appellate Division, Third Department

A NYC Transit Authority [Authority] train operator [Operator] was served with disciplinary charges. Following a full evidentiary arbitration hearing conducted under the collective bargaining agreement, Operator was terminated.

Operator applied for unemployment insurance benefits and the Unemployment Insurance Appeal Board, noting that it was bound by the factual findings of the arbitrator, conducted an "independent evaluation” as to whether Operator’s behavior constituted disqualifying misconduct for the purposes of unemployment insurance.

The Board, however, found that Operator’s behavior leading to the Authority’s filing disciplinary charges did not constitute “disqualifying misconduct” within the meaning of the Unemployment Insurance Law and approved his claim for unemployment insurance benefits.

The Appellate Division reversed the Board’s determination.

The court explained that "While the Board was free to make 'independent additional factual findings' and draw its own independent conclusion as to whether [Operator’s] behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator's] 'factual findings regarding [Operator’s] conduct and [her] conclusion' that claimant had" committed serious violations of safety rules.

In this instance the arbitrator found that Operator had committed “grave violations of the employer's policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct.”

In contrast, said the court, the Board “inexplicably found that [Operator] had ‘substantially complied with’ the [Authority’s] policies and made no effort to consider [Operator’s] behavior within the context of his prior disciplinary history."

Accordingly the Appellate Division ruled that the Board improperly contradicted factual findings of the arbitrator and remitted the matter to the Board for it to "reconsider upon appropriate findings."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07414.htm
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If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance

If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance
2014 NY Slip Op 07412, Appellate Division, Third Department

In 2006 a grievance brought by the union on behalf of a teacher [Teacher] who was not selected for a coaching position was settled with the school district. The settlement included a payment in the amount of $9,500 for “lost wages” as the result of Teacher not being given a coaching position.

This 2006 settlement award was included in the calculation of Teacher's final average salary for retirement purposes by the New York State Teachers' Retirement System [TRS].

Teacher was not appointed to a coaching position for either of the next two school years.  The union again filed a grievance on behalf of Teacher and again the matter was settled. A 2011 settlement “memorandum of understanding [MOU]” provided for an awarded of $11,220.* This amount constituted the stipends that Teacher would have been paid had he been appointed to a coaching position for both school years.

Teacher then asked TRS to recalculate his three-year final average salary to include the 2011 settlement payment provided by the MOU and to adjust his retirement allowance accordingly. TRS determined that because the payment provided pursuant to the 2011 MOU was not part of Teacher‘s regular compensation it could not be included in the final computation of his retirement benefit.

Teacher sued TRS seeking a court order annulling its decision, arguing that TRS’s decision was arbitrary and capricious in light of its previous inclusion of the 2006 settlement payment in its computation of his final average salary.

Supreme Court dismissed Teacher’s petition and he appealed that ruling to the Appellate Division.

The Appellate Division noted that a TRS member's final average salary is based on his or her highest average annual regular salary that was earned over any three consecutive years of service prior to retirement but shall exclude, among other things, "payments which are not part of the salary base."

TRS had explained that it had included the payment made to Teacher pursuant to the 2006 stipulation as the MOU reflected an acknowledgment by the school district that it had violated an existing collective bargaining agreement when it denied Teacher's coaching application on the ground that he was unqualified and gave the positions to teachers with less seniority. In addition, the 2006 settlement confirm that Teacher was indeed eligible to assume the coaching positions.

However, TRS pointed out that the 2011 MOU settling Teacher's subsequent grievances “did not concede, in any manner, that the denial of Teacher ‘s coaching applications for the 2005-2006 and 2006-2007 school years had resulted in any contractual violations….” In fact, said TRS, the 2011 MOU reiterated the school district's assertion that Teacher "was unqualified for the coaching position at issue."

The Appellate Division said that the fact that the school district opted to pay Teacher in exchange for a complete settlement of his claims against it does not create a basis to find that Teacher was eligible for the coaching appointments. Accordingly, the court found that the MOU settlement payment did not constituted compensation that Teacher would have earned and thus TRS was correct in excluding the 2011 settlement payment in its calculation of Teacher’s final average salary.

Finding that TRS’s determination, which was rendered without a hearing, was rational and not arbitrary and capricious, the Appellate Division declined to disturbed it.

* The Appellate Division observed that “Although the MOU states that the $11,220 settlement amount constitutes the stipends of $5,605 that Teacher would have been paid if appointed to a coaching position during each of the two school years for which he applied, the annual stipend amounts actually total $11,210.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07412.htm

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Removal of a public officer from his or her office

Removal of a public officer from his or her office

Kalodukas v Berentsen, 2014 NY Slip Op 07406, Appellate Division, Third Department

Glenda Kalodukas and other citizen residents of the Village of Bloomingburg in Sullivan County [Kalodukas], filed a petition in the Appellate Division pursuant to Public Officers Law §36* seeking to have the Appellate Division remove Mark Berentsen from his position of Mayor of the Village, alleging, among other things, that he violated General Municipal Law Article 18.**

Berentsen asked the court to dismiss the petition arguing, among other things, that the proceeding was moot in view of the fact that he was unsuccessful in his bid for reelection and no longer held the office of Mayor. The Appellate Division agreed and dismissed Kalodukas’ petition.

The court explained §36 of the Public Officers Law provides, as relevant in this action, that a village officer may be removed from office for "misconduct, maladministration, malfeasance or malversation in office." As Berentsen had lost his bid for reelection and no longer helds the public office from which Kalodukas sought to have him removed, the Appellate Division said that “the proceeding is undoubtedly moot.” 

In addition, the court addressed Kalodukas’ argument that the petition was not moot because Berentsen’s removal would prevent him from holding public office in the future. The Appellate Division, in a footnote, said that findings against an official in a removal proceeding pursuant to §36 of the Public Officers Law would not a bar his or her subsequent election to public office.***

* Such an application for removal may be made to the appellate division by any citizen resident of such town, village, improvement district or fire district, or by the district attorney of the county, in which such town, village or district is located. The officer is to given at least eight days notice and a copy of the charge[s] upon which the application will be made must be served with such notice.

** Article 18 is captioned “Conflicts of Interest of Municipal Officers and Employees”

*** In contrast, the court noted that Article VI, § 22 [h] of the State Constitution “A judge or justice removed by the [C]ourt of [A]ppeals shall be ineligible to hold other judicial office."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07406.htm

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Reporting compensation and reimbursement for expenses paid to election workers

Reporting compensation and reimbursement for expenses paid to election workers

Source: Internal Revenue Service bulletin

Election workers are individuals hired by government entities to perform services at polling places in connection with national, state and local elections.

An election worker may be referred to by other terms and titles, for example, poll worker, moderator, machine tender, checker, ballot clerk, voting official, polling place manager, absentee ballot counter or deputy head moderator. These workers may be employed by the government entity exclusively for election work, or may work in other capacities as well.

Election worker compensation is includible in income and may be treated as wages for social security and Medicare (FICA) tax purposes.

Election workers may be compensated by a set fee per day or a stipend for the election period. The election period may include attending training or meetings prior to and after the election. 

Election workers may also be reimbursed for their mileage or other expenses. To be excludable from wages, expense reimbursements must be made under an accountable plan.

For additional information, go to http://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Election-Workers-Reporting-and-Withholding