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

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

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

New York City Correction Officer found guilty of off-duty misconduct

OATH Index No. 1349/15

Astrid B. Gloade, an OATH Administrative Law Judge, found that an off-duty New York City correction officer brandished his firearm while intoxicated during an altercation outside of a night club and failed to cooperate with the police during his arrest was guilty of misconduct.

Noting that in a disciplinary proceeding the charging party bears the burden of proving the alleged misconduct by a preponderance of the credible evidence, Judge Gloade found that the employer met its burden with respect to most of the charged violations.

The ALJ recommended that the appointing authority terminate the correction officer from his position.

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1349.pdf

Employee improperly modified New York City school bus routes

OATH Index No. 2135/15

A quality assurance specialist assigned to manage school bus routes was charged with incompetence and insubordination when, on multiple occasions, he improperly modified New York City school bus routes and failed to communicate changes to school and bus personnel.

The specialist's mistakes resulted in students missing a day of classes and in multiple routers working overtime to correct his errors.

OATH Administrative Law Judge John B. Spooner sustained all of the charges and recommended the termination of the specialist's employment.   

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2135.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

Matter of City of Rochester (Rochester Police Locust Club), 2015 NY Slip Op 08580, Appellate Division, Fourth Department

Supreme Court granted the City of Rochester’s [Rochester] CPLR Article 75 application to vacate an arbitration award in favor of the Rochester Police Locust Club [Union]. The Union appealed but the Appellate Division affirmed the Supreme Court’s ruling.

The genesis of the grievance leading to the arbitration was a determination by Rochester denying a police sergeant's request for a vehicle to use on the job and take home. The Unionfiled on behalf of the sergeant and ultimately the arbitrator issued an award directing Rochester to provide the sergeant with a vehicle. The arbitrator ruled that the arbitrator Rochestermust provide the sergeant with a take-home vehicle “based solely on the [Rochester’s] past practice, which included providing such a vehicle to the two predecessors in his position.”

In sustaining the Supreme Court’s decision vacating the arbitration award the Appellate Division noted that the provision in the collective bargaining agreement governing arbitration provided, in relevant part, that "[t]he authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no power or authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written."

Citing Buffalo Teachers Federation v Board of Education, 50 AD3 1503, the court observed that "It is well settled that an arbitration award may be vacated if it exceeds a specifically enumerated limitation on an arbitrator's power [and that] an arbitrator exceeds his or her authority by granting a benefit not recognized under a governing collective bargaining agreement."

In this instance the Appellate Division said that the controlling provision was contained in a memorandum of agreement between Rochesterand the Union. This provision required Rochester to provide a vehicle to police "investigator[s] who are assigned to the Major Crimes Unit."

There was no question that the sergeant who had requested the vehicle was not an investigator nor was he assigned to the Major Crimes Unit. Notwithstanding this, the arbitrator concluded that Rochester must provide him with a take-home vehicle based solely on Rochester’s past practice, which included providing such a vehicle to the two predecessors in the Sergeant’s position.

This, said the court, was error explaining that although past practices may be considered by an arbitrator when interpreting a specific contractual provision, an arbitrator may not rewrite a contract by adding a new clause based upon a past practice.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08580.htm

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Reed v Department of Educ. of the City of N.Y., 2015 NY Slip Op 09193, Appellate Division, First Department

Supreme Court, New York County dismissed Lisa Reed's the petition seeking to vacate and, or, modify the opinion and award that resulted in the termination of Reed’s employment as a tenured teacher with the New York City Department of Education. The Department had served charges and specification pursuant to Education Law §3020-a on Reed alleging that she was “incompetent and ineffective during three school years.”

Reed appealed the Supreme Court’s ruling but the Appellate Division affirmed the lower court decision, noting that the charges filed against Reed were supported by adequate evidence showing that she had failed to plan and execute lessons, as observed on multiple enumerated dates.

The Appellate Division also said that ‘The evidence shows that [Reed] continually refused to accept responsibility for her failure to deliver effective instruction. In particular, she failed to implement the school administration's professional development recommendations with regard to lesson planning preparation and execution, proper pacing of lessons, ensuring students stay on task, and assessing students' progress, among other things.”

As to the penalty imposed on Reed by the Department, termination, the court said that dismissing Reed from her position “does not shock [its] sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09193.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

____________________

  

Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Matter of Civil Serv. Empls. Assn., Inc. (Board of Educ. of Syracuse City Sch. Dist.), 2015 NY Slip Op 08570, Appellate Division, Fourth Department

An arbitrator, following a hearing, determined that the Syracuse City School District [District] had violated the collective bargaining agreement between it and the Civil Service Employees’ Association [CSEA] when it terminated the employment of one of the employees in the negotiating unit represented by CSEA. The arbitrator directed the District to [1] reinstate the employee to his former position; [2] credit him with the seniority to which he would have been entitled had his employment not been wrongly terminated; and [3] pay him "back pay for the salary and other benefits [he] lost as a result of [his] improper termination," retroactive to 30 days before he filed his grievance.

CSEA initiated a CPLR Article 75 proceeding to confirm an arbitration award in its favor while the District cross motioned the court to vacate the award contending that the award is not final and definite, and thus subject to vacatur  because the arbitrator did not specify whether it was entitled to an offset based on funds the employee had received following his termination from unemployment insurance and other employment.

The Appellate Division rejected the District’s contention explaining that “An arbitration award is nonfinal or indefinite "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy" and sustained the arbitration award.

In this instance, said the court, the award sufficiently defined the parties' rights and obligations notwithstanding its failure to address the offset issue. As to the District’s argument regarding the “offset” it claimed, the court said that there was no indication in the record that the District asked the arbitrator for such an offset at the hearing and, although the arbitrator retained jurisdiction "with respect to the remedy” for about six weeks after the award was rendered, the District did not seek clarification of the award regarding such an offset during that period.

On another issue -- Supreme Court’s awarding CSEA attorneys' fees as a sanction for the District’s “frivolous conduct” -- the Appellate Division said the Supreme Court had made the award without issuing a written decision setting out the “frivolous conduct” on which the award is based and the reasons why the court found such conduct to be "frivolous." Accordingly, the Appellate Division modified the Supreme Court’s order by vacating its award of attorneys' fees.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08570.htm