Long impasse in collective bargaining could result in a challenge to the Taylor Law

Long impasse in collective bargaining could result in a challenge to the Taylor Law

Source: Buffalo News article

An item in the Buffalo News notes that the impasse in collective bargaining negotiations between the City of Buffalo school district and the Buffalo Teachers Federation since 2004 could result in challenges to the Taylor Law.

The item is posted on the Internet at:

http://www.buffalonews.com/apps/pbcs.dll/article?avis=BN&date=20151020&category=CITYANDREGION&lopenr=151029947&Ref=AR&profile=1414

Absence of any reference to the benefit claimed in the collective bargaining agreement defeats the employee organization's breach of contract allegation

Absence of any reference to the benefit claimed in the collective bargaining agreement defeats the employee organization's breach of contract allegation
Westchester County Corr. Superior Officers Assn. v County of Westchester, 2015 NY Slip Op 07262, Appellate Division, Second Department

The Westchester County Correction Superior Officers Association, together with several individually named retired correction officers, sued Westchester County seeking to recover damages for an alleged breach of the relevant collective bargaining agreement [CBA]. Supreme Court dismissed the Association’s complaint and the Association appealed.

The Association alleged the County had breached the CBA when failed to pay the individually named correction officers benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to a permanent disability.

Citing Westchester County Correction Officers Benevolent Association, 99 AD3 998, the Appellate Division ruled that Supreme Court had properly granted Westchester’s motion for summary judgment dismissing the complaint, explaining that the County had demonstrated, prima facie, that “there is no provision in the CBA requiring [the County] to pay benefits equivalent to those paid pursuant to the Workers' Compensation Law for loss of earning capacity due to permanent disability.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07262.htm

Disclosing information that a "whistle-blower believes constitutes an improper governmental action

Disclosing information that a "whistle-blower believes constitutes an improper governmental action

Gaffney v Addison, 2015 NY Slip Op 07372, Appellate Division, Fourth Department

The chief operator of the water treatment plant for the City of Watertown, Brian D. Gaffney, was served with disciplinary charges alleging that after his supervisor made certain operational decision, Gaffney reported the supervisor’s decision to the New York State Department of Health [DOH] without notifying his supervisor.

Such action allegedly violated prior directives concerning the “chain of command.” Gaffney’s supervisor said that Gaffney “stated that he had intended for DOH to 'intervene' in the operational decision, and that, given the same circumstances, he would take the same action again in reporting the decision to DOH. The disciplinary hearing officer found Gaffney guilty of the charges filed against him and recommended that he be terminated from his position. The City adopted the hearing officer’s findings and recommendation and dismissed Gaffney from his position.

Gaffney then initiated a CPLR Article 78 proceeding seeking a court order annulling the determination finding him guilty of misconduct and his termination from his position. The Appellate Division sustained both the finding that he was guilty of misconduct and the penalty imposed by the City.

The court explained that the determination that Gaffney had engaged in insubordination was supported by substantial evidence.*  In addition, said the court, “substantial evidence supports the finding of the Hearing Officer, which [the City] adopted, that [Gaffney] failed to make a good faith effort to notify the City of the information to be disclosed and, therefore, [Gaffney’s] disclosure to DOH was not protected by Civil Service Law §75-b.”

§75-b of the Civil Service Law, the so-called “whistle-blower law,” provides, in pertinent part, that prior to disclosing information to a governmental body "(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action," the employee shall make a good faith effort "to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.”

While Gaffney contended that “such an effort would have been futile,” the Appellate Division concluded that Gaffney’s testimony to that effect merely raised an issue of credibility that the Hearing Officer was entitled to resolve against him.

Turning to the penalty imposed by Gaffney’s employer, the court said it had concluded that the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law … particularly in light of [Gaffney’s] statement that he would take the same action again if he were placed in the same situation.”

* Substantial evidence was described by the court as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07372.htm

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Union did not waive its right to arbitrate its salary contract grievance as it was not a party in a federal FLSA action commenced by unit member

Union did not waive its right to arbitrate its salary contract grievance as it was not a party in a federal FLSA action commenced by unit member  

Matter of Monroe County (Monroe County Law Enforcement Assn.), 2015 NY Slip Op 07381, Appellate Division, Fourth Department

A dispute arose concerning the compensation owed to certain Monroe County Sheriff’s Department Sergeants and Deputies for their required attendance at roll call briefings. In 2010 13 current or former Sergeants and Deputies commenced an action against the County and the Department [Employer] in the United States District Court* for the Western District of New York alleging that the County and the Department [herein after "Employer"] violated the Fair Labor Standards Act [[FLSA] 29 USC §201 et seq.] in compensating them for attending or conducting roll call briefings.

In 2013 the Monroe County Law Enforcement Association filed a grievance alleging that Employer had violated the CBA provisions governing compensation for roll call briefings and filed a grievance on behalf of a number of members in the negotiating unit employed in the Court Security Bureau as Deputy Sheriff Court Security Sergeant and Deputy Sheriff Court Security Deputy. Employer denied the grievance through all of the steps of the contract grievance procedure set out in the CBA. The the Association then demanded that the grievance be submitted to arbitration.

Employer then filed a petition asking Supreme Court to stay the arbitration. Supreme Court denied Employer’s petition and granted the Association's cross petition to compel arbitration.

Employer appealed the Supreme Court’s determination but the Appellate Division sustained the lower court’s decision. The court said that notwithstanding Employer’s argument to the contrary, the Association did not waive its right to arbitrate its grievance under the CBA notwithstanding the fact that certain of its members commenced an action in federal court under the FLSA as individual employees.  

The Appellate Division explained that "[T]he claims asserted in [the federal] action are entirely separate from those raised in the arbitration proceeding, and distinct remedies are sought in each."

Further, said the court, the Association was not a party to the federal action, which seeks enforcement of the employee rights as individual employees protected by the FLSA rather than as Association members subject to the CBA. In addition, noted the court, arbitration is not barred by res judicata inasmuch as there is no identity of parties or issues.

* Crespo v County of Monroe, New York, 2015 WL 2406112 [WD NY] The Appellate Division noted that there has been no final determination in this federal action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07381.htm

Selected Reports issued by the Office of the State Comptroller during the week ending October 17, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending October 17, 2015

Click on text highlighted in color to access the full report

School Audits:

Bayport-Blue Point Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/bayportbluepoint.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Chappaqua Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/chappaqua.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Copiague Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/copiague.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Spackenkill Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/spackenkill.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Western New York Maritime Charter School

http://www.osc.state.ny.us/localgov/audits/schools/2015/western_ny_maritimecharter.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Capital Planning Problems at NY Racing Association

Problems with capital planning remain for the New York Racing Association (NYRA) years after a reorganization that was intended to strengthen its finances and operations. Auditors found that NYRA failed to adequately prioritize important capital projects and formally estimate project costs funded by Video Lottery Terminal (VLT) revenue, according to an audit released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/audits/allaudits/093016/14s54.pdf

Some exceptions to the Doctrine of the Exhaustion of Administrative Remedies

Some exceptions to the Doctrine of the Exhaustion of Administrative Remedies

McLaughlin v Hankin, 2015 NY Slip Op 07272, Appellate Division, Second Department

In a CPLR Article 78 proceeding challenging the determination of the president of Westchester Community College to terminate petitioner Catherine McLaughlin’s employment with the college, the college raised an affirmative defense contending that McLaughlin failed to exhaust her administrative remedies under the relevant collective bargaining agreement [CBA] between the college and the Westchester Community College Federation of Teachers, American Federation of Teachers Local 2431 [Local 2431].

Supreme Court granted McLaughlin’s petition, finding that the McLaughlin was prevented from availing herself of the remedial provisions of the CBA by Local 2431’s decision not to press her claim.*

The Appellate Division reversed the lower court’s ruling, explaining that, as a general rule, an employee covered by a CBA that provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies except where the individual can prove that the union breached its duty of fair representation in the handling of the employee's grievance. Further, said the court, citing Civil Service Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, a union’s breach of its duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or its decision was made in bad faith.**

In her complaint McLaughlin did not allege that Local 2431’s conduct was arbitrary, discriminatory, or that its decision was made in bad faith, and, said the court, the record does not support such a conclusion.  

Accordingly, the Appellate Division ruled that as McLaughlin failed to establish that an exception to the exhaustion doctrine was applicable, Supreme Court should have denied her petition and dismissed the proceeding on the merits.

Additionally, in Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division, addressing a union’s duty of fair representation, said:

1. The individual must be in the negotiating unit represented by the union when the breach of the union’s duty of fair representation is alleged to have occurred;*** and

2. In the event the individual has standing to claim a breach in his or her union’s duty of fair representation, the fact that the individual disagrees with the union’s action or negotiating position does not, without more, constitute proof of union’s failure of its duty of fair representation.

* In Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, the court held that "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”

** Should a unit member sues a union for its alleged violation of its duty of fair representation, he or she must name the specific individual or individuals involved in, or whose actions constituted, the violation [see Grahame v Rochester Teachers’ Associations, 262 AD2d 963, motion for leave to appeal denied, 94 NY2d 796].

*** In Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. 

N.B. In Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07272.htm

Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct

Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct

Matter of Malcolm (Honeoye Falls-Lima Cent. Sch. Dist.--Commissioner of Labor), 2015 NY Slip Op 07306, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Bernice Malcolm was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Malcolm, a special education teacher, challenged the Board’s finding that she lost her employment due to disqualifying misconduct, stemming from conduct and circumstances that led to the preferment of charges by the employer against her.

The Appellate Division said that it is well settled that a "[v]iolation of an employer's known policies, as well as unauthorized absence from work, have been held to constitute disqualifying misconduct," citing Matter of Maldonado, 118 AD3d 1246.

Here, said the court, the record establishes that, although the employer informed Malcolm that approval for an unpaid leave of absence was required before she commenced an administrative internship at another school, Malcolm failed to request any leave of absence and, instead, used paid sick leave for part of that period. In addition, the record indicated that Malcolm did not submit to a scheduled medical examination required by her employer in order to validate her absence from work or comply with her employer's directive to return to work. The decision also noted that testimony by her employer also established that Malcolm abused the employer's paid leave and bereavement polices on various other occasions.

Under the circumstances presented herein, the Appellate Division found that the Board's finding of misconduct is supported by substantial evidence in the record. As to Malcolm assertion that her absences were justified and not improper, the court said that “this claim presented a credibility issue for the Board to resolve.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07306.htm