Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Cronk v King, 2015 NY Slip Op 06396, Appellate Division, Third Department

In this Article 78 action, Supreme Court granted Jennifer Cronk’s petition to annul the determination of Commissioner of Education dismissing Cronk's appeal of a determination by the Valhalla Union Free School District terminating her employment based on its finding that she was "the least senior" teacher in her tenure area.

Cronk is a teacher certified to teach English to students in grades 7-12. In 2000, Valhalla appointed Cronk to a three-year probationary position in the English 7-12 tenure area and assigned her to teach computer applications courses. In 2003 Valhalla granted Cronk tenure in the English 7-12 tenure area. 

Valhalla abolished two positions in the English 7-12 tenure area at the end of the 2010-2011 academic year and determined that Cronk was the “least senior” teacher in the English 7-12 tenure area because she had earned no seniority for the purposes of layoff as she taught computer classes rather than English classes. Accordingly Valhalla terminated Cronk's employment and [presumably] placed her name on a preferred list.

Cronk appealed Valhalla’s decision to the Commissioner of Education arguing, among other things, that she should not have been terminated due to lack of seniority because, regardless of her specific teaching assignment, certain protections afforded to educators by 8 NYCRR subpart 30-1 of the Rules of the Board of Regents protected her seniority in the English 7-12 tenure area.

Ultimately, the Commissioner dismissed Cronk's appeal on the ground that she failed to join necessary parties. The Commissioner further stated that Cronk's appeal would, in any event, have been dismissed on the merits because he found that the “regulatory protections” Cronk relied upon were inapplicable.

Upon review, Supreme Court granted Cronk’s petition, annulled the Commissioner's determination and remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement. Valhalla appealed Supreme Court’s ruling but the Appellate Division sustained the lower court’s decision..

As to Valhalla’s argument that Supreme Court erred in its determination that the Commissioner improperly dismissed Cronk's appeal for failing to obtain "leave or direction" to join necessary parties, the Appellate Division said that after Cronk filed her original petition with the Commissioner, it became clear that the jobs of two other teachers who were not named as respondents could be affected if Cronk were reinstated.

Cronk then submitted a letter to the Commissioner that clearly requested permission to amend her petition for the express purpose of joining the two teachers as necessary parties and enclosed along with it a copy of the proposed pleading, with proof of service on all parties. Subsequently Cronk received a response from the State Education Department stating that "the amended petition has been accepted for consideration." In view of this, said the Appellate Division, the Commissioner's determination that Cronk “neither sought nor received permission to join any additional parties" lacks a rational basis and, thus, was properly annulled by Supreme Court.

As to Valhalla’s contention that Cronk failed to exhaust her administrative remedies before filing her CPLR Article 78 proceeding by not first petitioning the Commissioner to reopen her appeal based upon a mistake of fact as to whether she had sought permission to join necessary parties, the Appellate Division concluded that seeking to have the Commissioner reopen her appeal would have been futile inasmuch as the Commissioner held that her petition would have been dismissed on the merits even if it had not been dismissed for failure to join necessary parties.

Further, said the court, “Even if the Commissioner was operating under a misapprehension of the facts as to whether [Cronk] had sought and received permission to join necessary parties, neither party argues that his explanation as to why [Cronk’s] appeal would fail on the merits was subject to any such misapprehension.”

The Appellate Division then addressed “the merits,” and citing Education Law §3013[2], said that whenever a board of education abolishes a teaching position, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." The Rules  define "[s]eniority" as an educator's "length of service in a designated tenure area [that] shall[,] during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator," a "substantial portion of . . . time" being defined as "40[%] or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."

Cronk, said the court, conceded that although Valhalla awarded her tenure in the English 7-12 tenure area, she never spent 40% or more of her time teaching English classes. Rather she argued that her seniority was preserved by another of the Rules, 8 NYCRR 30-1.9[c], which states that "[n]o professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his [or her] time in a tenure area other than that in which he [or she] has acquired tenure or is in probationary status, without his [or her] prior written consent."

The Appellate Division said that the evidence demonstrated that Cronk was a professional educator and Valhallaassigned her “exclusively to teach computer classes,” which the Valhalla admits was an assignment outside of her probationary and acquired English 7-12 tenure area. Significantly, the court said that the record was devoid of evidence that Cronk was aware that she was given an out-of-area assignment or that she consented to such an assignment in writing.

In contrast, the Commissioner determined that the protections of 8 NYCRR 30-1.9(c) did not apply to Cronk because, "[f]rom the inception of her employment[,] . . . petitioner never devoted a substantial portion of her time within the English 7-12 tenure area."

The Appellate Division said that “Even according deference to the Commissioner's construction and interpretation of the regulations, as we must," it could not agree that this interpretation is rational or reasonable,” explaining that “Nowhere in the language of 8 NYCRR 30-1.9 (c) is there a requirement that professional educators must first spend some of their time teaching within their probationary or acquired tenure areas before earning the right to consent to an out-of-area assignment.”

As the Commissioner's interpretation reads this nonexistent requirement into the provision, the Appellate Division said it viewed it as "an artificial or forced construction," Further, said the court, the Commissioner's interpretation “also runs contrary to the underlying purposes of the Rules governing teacher tenure and seniority credit,” citing the Court of Appeals' ruling in Kaufman v Fallsburg Cent. School Dist. Bd. of Educ., 91 NY2d 57. In Kaufman it was noted that 8 NYCRR former 30.9 (b) (now 8 NYCRR 30-1.9 [c]) "protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments."*

As the "twofold protective purpose" of 8 NYCRR 30-1.9 (c) is  [1] to protect teachers from unknowing, involuntary out-of-area assignments and [2] allowing for the accrual of seniority credit in their original tenure area if they should accept such an assignment  the Appellate Division held that these protections are defeated if the provision is construed in such a way as "to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area." Accordingly, the Appellate Division concluded that the Commissioner's interpretation of 8 NYCRR 30-1.9(c) defeated these protections and ruled that Supreme Court properly annulled the Commissioner's confirmation of Cronk's termination.

As noted above, Supreme Court's order had remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement to her position, presumably with back salary and benefits. In Joan Carey v Rockville Centre CSD, Comm. of Ed. Decision 12,678, the Commissioner ruled that the teacher’s seniority had to be recalculated and if it was found that she was not the least senior teacher in the tenure area at the time of the layoff, she was to be reinstated with back salary and benefits.

* In Speichler v. Board of Co-op. Educational Services, 90 NY2d 110, the court held that Deer Park violated the educator’s rights “as established by the statutory scheme instituted in this State which, [educator] correctly notes, is to be read broadly in favor of the teacher.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06396.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on http://nylayoff.blogspot.com/

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Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Use of excessive force against a juvenile resident at a detention center

Administrative Law Judge [ALJ] Tynia D. Richard sustained charges that a counselor at a juvenile detention center used excessive force against a resident and made a false report.

A video showed the counselor initiate force against the resident who was not complying with commands but was not physically resisting. It also showed the counselor put the resident in a bear hug, push him over a group of chairs, and choke him; the same video later showed him chase the resident and throw him to the floor. Others had to intervene in both instances to get counselor away from the juvenile.

The director and the head of training testified these acts were serious violations of agency guidelines. The counselor’s report of the incident was false and misleading, having omitted material facts.

The ALJ recommended the counselor be terminated from his position.

The Commissioner adopted the ALJ’s factual findings but did not impose a penalty, as the counselor had resigned from his position with Children’s Services.*   Admin. For Children Services v. Silva, OATH Index No. 1275/15.

Failure to report to work as scheduled  

A corrections captain was charged with filing an untimely report and with being AWOL for 5 days. ALJ Alessandra F. Zorgniotti sustained the charges.

The captain had hurt his back while on vacation and converted his vacation days to sick days. While still on vacation, he requested that his vacation be extended by the number of days he was on sick leave. The captain did not report to work as scheduled and failed to verify whether his request to extend his vacation had been granted.

ALJ Alessandra F. Zorgniotti recommended 20-day suspension for the AWOL charges and a reprimand for submitting a late report.  Dep't of Correction v. Ramos, OATH Index No. 1903/15.

Testing positive for cocaine

A sanitation worker admitted that he had tested positive for cocaine and offered evidence in mitigation, including character evidence from supervisors. ALJ Kevin F. Casey recommended termination of employment, but urged the Department to consider alternative penalties such as drug and alcohol testing for the remainder of the worker's career.   Dep't of Sanitation v. Anonymous, OATH Index No. 1821/15.

Failure to meet deadlines

In a Loft Board proceeding, ALJ John B. Spooner formally admonished an attorney who failed to meet ordered deadlines and refused to reply to repeated discovery requests. The attorney did not receive a more severe sanction because he ultimately complied with requests and conducted himself professionally at trial.  Matter of Stone, OATH Index No. 1945/14.

* With respect to the State as the employer, 4 NYCRR 5.3(b), in pertinent part, provides “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”

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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

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An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”

An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”

Tartakoff v New York State Educ. Dept., 2015 NY Slip Op 06276, Appellate Division, Third Department

One of the issues raised by Raymond Tartakoff in his appeal of an adverse decision following an administrative hearing before the State Department of Education’s Office of Professional Discipline [OPD] was the disqualification of his attorney from representing him in the hearing.

Tartakoff contended that he did not receive a fair hearing because his chosen counsel was disqualified. The Appellate Division disagreed, noting that Tartakoff had retained the attorney who was already representing another individual, JC, in a separate civil rights action against her employer in federal court.

The court explained that to represent Tartakoff, the attorney would have had to effectively cross-examine JC, who was a key witness in OPD's case against Tartakoff. . The attorney’s simultaneous representation of JC in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination. Further, said the court, in the Tartakoff proceeding the attorney would be attempting to diminish JC’s credibility, whereas an opposite result would be pursued in the federal action. There, ruled the Appellate Division, was a sufficient conflict of interest to justify disqualifying Tartakoff’s attorney in the administrative proceeding.

In the words of the court, "When the representation is simultaneous, the burden shifts to the attorney to demonstrate that no actual or apparent conflict in loyalties exists" and any  "[D]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06276.htm

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

Villalobos v New York City Fire Dept., 2015 NY Slip Op 06249, Appellate Division, Second Department

Amaury Villalobos filed a Freedom of Information Law [FOIL] request seeking certain documents in the custody of the New York City Fire Department. Among the material demanded by Villalobos were documents containing the residence address of certain individuals. After an in camera review of the documents demanded, Supreme Court directed the New York City Fire Department to provide Villalobos with “legible unredacted copies of all documents inspected by the court in camera” which would documents would then include the residence address of the individuals.

The Fire Department appealed the Supreme Court ruling and the Appellate Division deleted that portion of Supreme Court’s order that, in effect, directed the Department to provide the Villalobos with residence addresses contained in the documents inspected by the court in camera.

The Appellate Division explained that under FOIL, government records are "presumptively open" for public inspection and copying, unless they fall within an enumerated statutory exemption* set out in Public Officers Law §87(2). However, said the court, “exemptions are to be ‘narrowly construed’ so as to ensure maximum public access … and the burden rests on the agency to demonstrate that the requested material in fact qualifies for exemption.” To meet this burden, said the court, the agency must "articulate particularized and specific justification" for the nondisclosure at issue.”

In this instance the Appellate Division concluded that the Fire Department “failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents.” The court opined that the Department’s “conclusory assertions” that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

As to the disclosure of the residence addresses contained in the documents, the court ruled that such disclosure “would constitute an unwarranted invasion of personal privacy … since, under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.

Accordingly, the Appellate Division modified the Supreme Court’s judgment so as to permit redaction of the residence addresses contained in the documents at issue.

* The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. However, it should also be noted that there is no statutory bar to the custodian of the public record providing documents pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06249.htm

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining
Transport Workers Union of Greater N.Y. v Bianco, 2015 NY Slip Op 06041, Appellate Division, First Department

The Appellate Division said Supreme Court properly dismissed the Transport Workers Union's complaint alleging that the collective bargaining agreement provision setting forth procedures for pre-disciplinary suspensions was void under Civil Service Law §75.

The court said that "Rights under Civil Service Law §75 may be supplemented, modified or replaced by the terms of a collective bargaining agreement," which is the case here with respect to disciplinary grievance procedures set forth under the Civil Service Law, “including those concerning pre-disciplinary suspensions.”

§76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law relating to the removal or suspension of “officers or employees in the competitive class of the civil service of thestate or any civil  division” may be supplemented,   modified or replaced by agreements negotiated between the state and an employee organization  pursuant  to  Article 15 of the Civil Service Law.

In Antinore v State, 40 NY2d 6, the Court said that a union could bargain away a collective bargaining unit member’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The Transport Workers Union v Bianco decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06041.htm

The Antinore decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19750718_0043291.NY.htm/qx

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

[Click on text highlighted in colorto access the full report]

Audits of the following jurisdictions completed:

City of Johnstown;

http://www.osc.state.ny.us/localgov/audits/cities/2015/johnstown.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

North Patchogue Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/northpatchogue.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of Rosendale

http://www.osc.state.ny.us/localgov/audits/towns/2015/rosendale.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of West Seneca

http://www.osc.state.ny.us/localgov/audits/towns/2015/westseneca.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Amani Public Charter School

http://www.osc.state.ny.us/localgov/audits/schools/2015/amanicharter.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Holland Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/holland.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Mount Pleasant Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/mountpleasant.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215creleaseand the

Onteora Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/onteora.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Comptroller finds persistent problems at the Long Island Power Authority

New York State Comptroller Thomas P. DiNapoli recommended improvement of oversight of the Long Island Power Authority (LIPA) after a report by his office found that previous reforms have not reduced costs for ratepayers and debt levels continue to rise. http://www.osc.state.ny.us/press/releases/july15/072415.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072415release

Comptroller DiNapoli expects the “Tax Cap” will drop below 1% in 2016

Property tax growth for local governments will be capped at less than one percent for the 2016 fiscal year, according to a report issued by State Comptroller Thomas P. DiNapoli. The report noted the allowable tax levy growth factor will be 0.73 percent for entities that operate on a calendar-based fiscal year – which includes all counties, towns, fire districts, 44 cities and 10 villages.

http://www.osc.state.ny.us/press/releases/july15/072015.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072015release

Former Fire District Treasurer sentenced after being found guilty of theft of district funds

Lisa Stone, the former treasurer of Pulteney Fire District No. 2 was sentenced to five years probation and ordered to pay full restitution for stealing more than $6,800 in fire district funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she paid herself an illegal second salary.

http://www.osc.state.ny.us/press/releases/july15/072315.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072315release

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Hansler v Lehigh Valley Hospital Network, USCA, 3^rd Circuit, Docket #14-1772

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA”, 29 U.S.C. § 2601 et seq.

Hansler submitted a medical certification requesting leave for two days a week for approximately one month. Her complaint alleged that the medical certification refers to the length of her requested leave but not the nature or duration of her condition.

A few weeks later, after she had be absent from work for several days, Lehigh Valley, citing “excessive absences,” told Hansler that her request for leave had been denied and terminated her employment. The Circuit Court of Appeals noted that in so doing, Lehigh Valleydid not seek any clarification with respect to Hansler’s medical certification as required by law.

Hansler sued but the federal district court dismissed her complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” In contrast, the Circuit Court concluded that “in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act.”

Reversing the district court, the Circuit Court remanded the matter to the district court “for further proceedings.”

The decision is posted on the Internet at:

http://www.ca3.uscourts.gov/search-opinions

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

2015 NY Slip Op 05779, Appellate Division, First Department

The Appellate Division said that Supreme Court correctly dismissed the complaint filed by an employee [Grievant] against New York City Department of Education (DOE), because Grievant had failed to exhaust the administrative remedies set forth in the relevant collective bargaining agreement.

Grievant, said the court, was not excused from exhausting her administrative remedies by simply alleging that her collective bargaining representative [Union] had mishandled her grievance, because she could have instituted the grievance procedure herself but failed to so.. Further, explained the Appellate Division, “This is not a case where the Unionhad sole, exclusive authority over the grievance process.*

In addition, the court noted that the City of New Yorkis not a proper party to this action, as it cannot be held liable for the Grievant’s employer, the New York City Department of Education.

As to Grievant’s claim against the Union  was not brought within the applicable four-month statute of limitations. as the statute of limitations was not tolled for the purposes of the CPLR because Grievant’s initial federal action, which was dismissed for lack of subject matter jurisdiction, was, itself, untimely. In addition, the Appellate Division said that Grievant “was not entitled to the 30-day toll [of the statute of limitations] created by the application of Education Law §3813(1) and CPLR §204(a) because the union is not an entity covered by Education Law §3813(1).”

*Typically a union has “exclusive authority” with respect to demanding arbitration of an alleged violation of a term or condition of employment set out in a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05779.htm

Town’s misplaced trust in its Town Clerk enabled her to steal Town's funds, and again steal its monies following the initial discovery of her theft by the State Comptroller

Town’s misplaced trust in its Town Clerk enabled her to steal Town's funds, and again steal its monies following the initial discovery of her theft by the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the guilty plea of former Town of Bennington Town Clerk Tina Metz in a string of thefts from the Town that intensified even after DiNapoli’s office uncovered her criminal behavior.

On July 22, 2015 Metz pleaded guilty in Wyoming County Court to charges grand larceny in the third degree, a class D felony; offering a false instrument for filing in the first degree; and official misconduct. She was ordered to pay restitution of $33,189 for the money she stole from  fees and tax payments paid to the Town. If Metz fails to make restitution, she faces a prison sentence of 3 2/3 to 11 years.

 
Department of Audit and Control auditors and investigators initially, discovered a $14,000 shortage for 2013 and notified the Town, while continuing to work with the Wyoming County District Attorney and Sheriff’s Department. Metz repaid the town $12,000 in cash, claiming she found it at her home and in a filing cabinet at work. Subsequent investigation revealed that Metz continued to steal even after the Comptroller alerted the Town.

“The town’s misplaced trust in this clerk enabled her to steal and steal again,” DiNapoli said.  “Blind trust in a colleague doesn’t pass for proper oversight in public finance. The Comptroller thanked Wyoming County District Attorney Donald O’Geen and the Wyoming County Sheriff’s Department for partnering with the Department of Audit and Control to hold Ms. Metz accountable for her crimes.”

Town officials agreed to DiNapoli’s audit recommendations, including the timely deposit of all fees collected and monthly bank reconciliations.

Allegations of fraud involving taxpayer money may be reported by calling the Comptroller's toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Read the Town of Bennington [NY] audit report here:

http://osc.state.ny.us/localgov/audits/towns/2014/bennington.pdf

The employee must be a member of the collective bargaining unit represented by the union in order for the union to file a contract grievance on his or her behalf

The employee must be a member of the collective bargaining unit represented by the union in order for the union to file a contract grievance on his or her behalf

New York City Transit Auth. v Transport Workers Union of Greater N.Y. Local 100, 2015 NY Slip Op 06042, Appellate Division, First Department

The Transport Workers Union of Greater New York Local 100 [TWU] filed a contract interpretation grievance against the New York City Transit Authority [TA]. TWU contended that under the terms of an article, Article §5.2(j), set out in the relevant  collective bargaining agreement [CBA], certain bus maintenance employees who had trained in TWU’s Divisional area in Brooklyn and who were, following training, initially assigned to Staten Island despite their preference for an initial assignment location in Brooklyn because no other positions were available in Brooklyn at that time, were entitled to "transfer" back to Brooklyn when a new class of such employees graduated from training.

When TA denied the grievance, TWU scheduled arbitration. TA brought an Article 75 proceeding seeking a permanent stay of the arbitration. Supreme Court granted TA’s motion to permanently stay arbitration. TWU appealed but the Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that TWU lacked standing to bring the grievance as it did not represent bus maintenance employees working in Staten Island. Rather, said the court, Staten Island employees were represented by Amalgamated Transit Union Local 726 [ATU]. Accordingly, the employees on whose behalf TWU had filed the grievance were not represented by TWU and TWU could not bring "contract interpretation grievance" involving §5.2(j)  of the CBA on their behalf.

Further, said the Appellate Division, the provision in the CBA relied on by TWU, §5.2(j),  applies to employees who were transferred out of its Division due to a lack of work in their title in the Brooklyn Division. Here, however, the individuals on whose behalf TWU had grieved “were not transferred out” of Brooklyn due to a lack of work. Rather these individuals were initially assigned to Staten Island upon completion of their training, which training had been given Brooklyn.

The court said that the fact that these trainees had a exercised a Brooklyn "school pick" for such training did not trigger the provisions of Article §5.2(j), as those individuals were not “employed in their title in Brooklyn.” In the words of the Appellate Division there was “no reasonable relation between the subject matter of the dispute and §5.2(j).

Finally, the Appellate Division commented that TWU's grievance appears to be, in fact, an attempt to enforce a provision of the ATU CBA, on behalf of ATU members, which violates public policy, explaining that so doing risks generating an inconsistent result with a settlement of a similar contract interpretation grievance brought by ATU, on behalf of the ATU members and under the ATU CBA.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06042.htm