Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence

Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence

Matter of Pellicano (Department of Labor), 2015 NY Slip Op 09161, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Stephen J. Pellicano, a teaching assistant, was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Following an incident in which Pellicano allegedly failed to appropriately handle a fight among students he was directed to attend a meeting with the school superintendent to discuss possible disciplinary sanctions. Pellicano did not attend the meeting and ultimately was terminated after a disciplinary hearing.

Pellicano appealed, contending that the ALJ improperly denied his request to have his wife testify at the hearing and did not receive the police report into evidence at the hearing.

The Appellate Division rejected his allegations concerning his request to have his spouse testify, noting that the record indicated that Pellicano stated at the onset of the hearing that he did not have any witnesses. As to Pellicano’s claim that the ALJ improperly refused to receive into evidence the police report of the student altercation, the court said that Pellicano [1] did not offer it and [2] it was not relevant to Pellicano’s termination from his position with the school district.

The Appellate Division sustained the Board’s determination and dismissed Pellicano’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09161.htm

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits

Matter of Brown (Commissioner of Labor), 2015 NY Slip Op 08679, Appellate Division, Third Department

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 20, 2014, which ruled that claimant was eligible to receive unemployment insurance benefits.

A teacher [Teacher] was placed on administrative leave in March 2012 and, shortly thereafter, was served with disciplinary charges pursuant to Education Law § 3020-a and proposed termination as the penalty to be imposed. The Hearing Officer found Teacher guilty of a number of the charge but rather than imposing dismissal as the penalty, directed that Teacher be suspended without pay for the second half of the school year.

Teacher then applied for, and obtained, unemployment insurance benefits during the suspension period without pay.

The appointing authority appealed and an Unemployment Insurance Administrative Law Judge [ALJ], acknowledging that the factual findings made by the Hearing Officer were entitled to collateral estoppel effect, nevertheless concluded that the conduct for which Teacher was disciplined, although "serious," did not rise to the level of disqualifying misconduct that would preclude him from receiving unemployment insurance benefits. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ’s ruling and the appointing authority appealed.

With respect to the question of whether Teacher committed disqualifying misconduct, the Appellate Division noted that this "is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of [disqualifying] misconduct."

That said, the Appellate Division said that Teacher was found to have committed numerous instances of improper, immoral and insubordinate behavior, as well as conduct unbecoming a teacher including making inappropriate, demeaning and sarcastic comments to students, and sending  unprofessional emails to staff and parents. Characterized as a “notable example” of Teacher’s “cavalier treatment of students” the court described an incident in which Teacher improperly confiscated a student's cell phone and impersonated that student in order to learn what another student thought of his teaching abilities.

In addition, said the Appellate Division, Teacher disregarded his employer's policy regarding the use of multimedia tools in the classroom, despite having previously discussed that policy with administrators, and elected to show a violent movie to his students without obtaining parental consent to do so.

The Appellate Division, noting that an employee’s actions that were contrary to established policies and that have a detrimental effect upon the employer's interests have been found by courts to constitute disqualifying misconduct, said that this includes insubordinate conduct and unprofessional behavior that is detrimental to the interests of the employer.

As the Hearing Officer had found that Teacher’s repeatedly engaged in such types of behavior and, under the circumstances presented by this case, the Appellate Division ruled that the Board’s holding that Teacher’s behavior reflected nothing more than "poor judgment . . . is erroneous and is not supported by substantial evidence.”

The Appellate Division reversed the Board's determination and remanded the matter to it "for further" proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08679.htm

Although a Civil Service Commission is vested with the authority to establish minimum qualifications for job titles such determinations are not immune from oversight or review in an arbitration proceeding

Although a Civil Service Commission is vested with the authority to establish minimum qualifications for job titles such determinations are not immune from review in an arbitration proceeding

Matter of City of Lockport (Lockport Professional Firefighters Assn., Inc.), 2015 NY Slip Op 08581

The City of Lockport [Lockport] and Lockport Professional Firefighters Association, Inc., Local 963 [Association] are parties to a collective bargaining agreement [CBA] that defines grievance as including "all claimed violations of any contract existing between [Lockport] and the employees covered by" the CBA. After Lockport's Civil Service Commission [Commission] created a new position within the Lockport Fire Department, -- Municipal Training Officer [MTO] – the Association and Lockport negotiated the terms and conditions of employment and the job duties applicable to that position which resulted in a Memorandum of Agreement [MOA] that provided that employees in the position of MTO "shall only be eligible for future promotional consideration to a Line Officer's position pursuant to existing civil service rules, regulations, and procedure beginning with Fire Lieutenant."  

The Commission subsequently amended the job specifications for Fire Chief to make the MTO eligible for promotion to Fire Chief. The Association filed a grievance and a demand for arbitration based upon Lockport's alleged violation of the MOA, and Lockport commenced this proceeding seeking a permanent stay of arbitration. Supreme Court granting Lockport’s petition and the Association's appealed that court’s ruling. The Appellate Division unanimously reversed the lower court’s ruling and Lockport appealed.

Lockport, for first time, raised in its appeal the argument that arbitration of the instant dispute was contrary to the Civil Service Law and public policy. The Appellate Division said that while such a contention may be raised for the first time on appeal, it concluded that the argument lacked merit. The court explained that New York State has a strong public policy favoring arbitration of public sector labor disputes and, citing NYC Transit Authority v Transport Workers Union, 99 NY2d 1, observed that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships."

The court continued, holding that “The instant dispute does not fall within the narrow scope of that exception, inasmuch as the provision of the MOA at issue concerns promotion, a term or condition of employment that is a proper subject for negotiation and agreement between the parties.”

The Appellate Division also rejected Lockport's argument that granting the remedy sought by Association -- enforcement of the MOA -- would violate public policy and conflict with the Civil Service Law because it would interfere with the Commission's authority to establish the qualifications for appointment to the position of Fire Chief. The court, quoting from Matter of Ulster County Sheriff’s Employees Association, 100 AD3d 1237, said "While the [Commission] undoubtedly had the authority to establish minimum qualifications for job titles in [City] government (see Civil Service Law §§50, 52), it does not follow that such determinations are immune from oversight or review" in an arbitration proceeding.”

Further, the Appellate Division was not persuaded by Lockport's claim that the Association's dispute was with the Commission and the Commission “cannot be bound by an arbitration award,” said this argument goes to "the merits of the grievance [which] are not the court[']s concern."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08581.htm