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February 05, 2016

Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures


Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures
City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, Appellate Division, Third Department

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law,* announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectadyand the Schenectady Police Benevolent Association [PBA]. Schenectady advised PBA that was replacing the contract disciplinary procedure, under which an employee upon whom disciplinary charges had been served had the right of appeal to an arbitrator, and, instead, unilaterally adopted disciplinary procedures that substituted the Public Safety Commissioner for the arbitrator as the ultimate administrative disciplinary decision maker.

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law.

Following a hearing, an Administrative Law Judge agree with PBA, finding that, under the Taylor Law, police disciplinary procedures must be the product of collective bargaining, and that the Taylor Law superseded the provisions of the Second Class Cities Law upon which Schenectady had relied in unilaterally adopting that statute's police disciplinary procedures. PERB affirmed the Administrative Law Judge's ruling, holding that that Schenectady's police disciplinary procedures were a mandatory subject of collective bargaining.**

Schenectady appealed PERB’s determination. Supreme Court upheld PERB's ruling and dismissed Schlenectday's petition.

Schenectady challenged the Supreme Courts ruling, arguing that Supreme Court erred by agreeing with PERB that the enactment of the Taylor Law superseded §133 of Article 9 of the Second Class Cities Law. The Appellate Division, noting that while this is a question of pure statutory construction and it is not dependent upon any special competence of PERB, said that “its own reading of the statutes at issue here led it to agree with Supreme Court that PERB's construction of the Second Class Cities Law, as it relates to the Taylor Law, was correct.

Indicating that the Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining, the Appellate Division commented that “courts have long recognized the 'strong and sweeping policy of the State to support collective bargaining under the Taylor Law.’" Citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46, the Appellate Division held that "the presumption is that all terms and conditions of employment are subject to mandatory bargaining."***

That said, the court commented that because of the "competing policy ... favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials," the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures, citing Police Benevolent Asso. of NY State Troopers, Inc., v Division of NY State Police, 11 NY3d 96.

It was undisputed that Second Class Cities Law §133, which was enacted prior to the Taylor Law, expressly commits police discipline to the discretion of Schenectady's Public Safety Commissioner. However, said the court, the “Second Class Cities Law [Article 2] §4 states that a provision of this statute — such as Article 9 [§133] containing its police disciplinary procedures — shall apply only ‘until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law.’"

The Appellate Division noted that PERB’s decision said that such language reveals "a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation." Put differently, the court explained that it viewed “the clear and unambiguous language of Second Class Cities Law §4” as providing “the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter.”

The Appellate Division concluded that Second Class Cities Law §133 does not require "that the policy favoring collective bargaining should give way" [to it] “nor did the court view the holdings in Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563and Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836) (19 NY3d 1066 to require reversal of Supreme Court's judgment.

In each of those cases, explained the court, the Court of Appeals confined its analysis to the specific language of the statutes at issue, none of which included a broad supersession provision such as the one confronting us in Second Class Cities Law §4. In view of the “clear distinction”, the Appellate Division said it could not conclude that either of these cases controls the outcome of this appeal.

* Article 9, § 133. Rules, orders and regulations, provides, in pertinent part, “The commissioner of public safety … is authorized and empowered to make, adopt, promulgate and enforce reasonable rules, orders and regulations for the government, discipline, administration and disposition of the officers and members of the police and fire departments, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said departments for neglect of official duty or incompetency or incapacity to perform his official duties or some delinquency seriously affecting his general character or fitness for the office, and may, in his discretion, punish any such officer or member found guilty thereof by reprimand, forfeiting and withholding pay for a specified time, supension [sic] during a fixed period or dismissal from office; but no officer or member of said departments shall be removed or otherwise punished for any other cause, nor until specific charges in writing have been preferred against and served upon him, and he shall have been found guilty thereof, after reasonable notice and upon due trial before said commissioner in the form and manner prescribed by law and the rules and regulations of the department.

** See 46 PERB 3025.

*** It does not appear that the Appellate Division’s considered Civil Service Law §76.4, which provides, in pertinent part, that “Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.” It could be argued that this language indicates a legislative intent that negotiating disciplinary procedures to “supplement, modify or replace” §§75 or 76 of the Civil Service Law be permissive rather than mandatory [or prohibited] subjects of collective bargaining within the meaning of the Taylor Law [Article 14 of the Civil Service Law].

The decision is posted on the Internet at:

February 04, 2016

From the Blogs - Posted by Employment Law News, WK WorkDay


From the Blogs - Posted by Employment Law News, WK WorkDay
A service provided by Wolters Kluwer Legal & Regulatory U.S. [Internet links highlighted in color]

The Wolters Kluwer Legal Scholar program, in its third year, allows current law students to compete for the chance to have their work published in a Wolters Kluwer publication. Wolters Kluwer will accept submissions through Friday, April 1, 2016

Posted: 02 Feb 2016 06:24 AM PST

By Dave Strausfeld, J.D.



Posted: 01 Feb 2016 06:16 AM PST



Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71


Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71
Galuski v New York State Div. of Military & Nav. Affairs, 2016 NY Slip Op 00562, Appellate Division, Third Department

Ruth A. Galuski sustained a work-related back injury on November 29, 2011and was out of work from December 5, 2011 until January 3, 2012. During this time, the Division of Military and Naval Affairs [DMNA] paid her full wages, as she had accumulated enough leave credits to cover the entirety of her absence.

Galuski also applied for workers' compensation benefits, and a Workers' Compensation Law Judge (WCLJ) issued a decision that granted her application, awarded her compensation and directed DMNA's insurance carrier to reimburse DMNA for wages it had paid to Galuski during her injury-related lost time from work.

Although DMNA’s insurance carrier reimbursed DMNA within 10 days of the WCLJ's decision, DMNA failed to restore Galuski's accrued leave credits until February 2013. 

Contending that DMNA’s restoration of Galuski’s leave credits was untimely within the meaning of Workers’ Compensation Law §25(3)(f), Galuski sought imposition of a penalty. After a hearing, the WCLJ declined to impose a penalty, and a panel of the Workers' Compensation Board upheld that decision. Galuski appealed.

The Appellate Division sustained the Board’s determination, explaining that the terms of the WCLJ's initial award provide for Galuski's direct compensation, which was paid in advance by DMNA when she received her full wages, as well as an express requirement that the carrier reimburse DMNA for the wages it had paid to claimant.

However, said the court, the award makes no mention of any obligation on DMNA’s part to timely restore Galuski's sick leave credits and as “restoration of leave time was not included in the terms of the award,” the Appellate Division concluded that the Board properly upheld the WCLJ's decision and declined to impose a penalty on DMNA.

It should be noted that certain Workers’ Compensation Leave benefits are provided to employees of the Division of Military and Naval Affairs in a negotiating unit covered by the collective bargaining agreement between the State and the Civil Service Employees Association, Inc., for the period April 2, 2011 to April 1, 2016. The relevant provision of this agreement, Article 11, Workers’ Compensation Benefits,  is posted on the Internet at: http://www.goer.ny.gov/Labor_Relations/Contracts/Current/cseadmna/2011_16_DMNA_Contract.pdf

Employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, the rules for the Classified Service provide as follows with respect to Workers’ Compensation Leave applicable the employees in a collective bargaining unit:*

4 NYCRR 21.8 (d) provides for Workers’ Compensation Leave with pay as follows:

“(d.) (1) The appointing authority upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under this Chapter.

“(2) Except when on full pay status under paragraph (1) of this subdivision, the employee may draw accrued vacation, overtime and sick leave credits, subject to the provisions of this Chapter pertaining thereto.

“(3) If not drawing full pay under paragraph (1) or paragraph (2) of this subdivision, an employee may, in the discretion of the appointing authority, be allowed to draw personal leave and sick leave at half pay for which he may be eligible under this Chapter.”

Further, with respect an employee’s use of his or her leave credits while on Workers’ Compensation Leave, 4 NYCRR 21.8(g) provides for the “Restoration of leave credits” as follows:

“(g) Leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. In the event that the employee dies, resigns, retires or continues absent beyond one year without further leave, cash payment for vacation and overtime credits, including any credits restored under this subdivision, shall be made in accordance with the appropriate provisions of this Chapter. In any other case, an employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in this Chapter.”

Attendance Rules for officers and employees designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law [the Taylor Law] serving in New York State Departments and Institutions are set out in 4 NYCRR Parts 27 through 33.

* N.B. 4 NYCRR 26.3 provides in the event there a collective bargaining agreement between the State and an employee organization the provisions these rules and the rules set out in the collective bargaining agreement shall “shall both be applicable” except that in the event “the provisions of the agreement are different from the provisions of [these] attendance rules, the provisions of the agreement shall be controlling.”

The decision is posted on the Internet at:

February 03, 2016

Body piercings and dress codes


Body piercings and dress codes
From the Blogs - Posted by Employment Law News, WK WorkDay, A service provided by Wolters Kluwer Legal & Regulatory U.S.

Noting that during the 21st century, body piercings, tattoos, and long beards have come into vogue and become commonplace, and arbitrator recently sustained a grievance filed by a union member seeking to quash her employer’s written disciplinary warnings issued for her failure to remove facial piercings (Amalgamated Transit Union, Local 1070 and Indianapolis Public Transportation Corp., Nov. 18, 2015, Daniel Zeiser, Arbitrator).

In 2009, prior to being hired as a bus driver in 2013, the grievant elected to receive three micro dermal piercings in her cheek. The process involved the insertion of an anchor through a hole in the cheek created by a thin needle. The anchor included a flat base and an arm that extended through the skin, into which could be inserted a jewel or a stone.

She chose to undergo this permanent process because it reminded her of something her mother wore when she was young. Her cheek, however, rejected one of the piercings, leaving two implants and a scar where the third implant failed.

The bus company that hired her had a Dress and Personal Appearance Policy that applied to employees with regular public contact, to project a professional image to riders and to the general public. The company updated its policy in 2014, which included an accessories section that limited the size of earrings that could be worn and limited earrings to one per ear, but it said nothing about face piercings. In September of 2014, however, the employer issued a notice about winter uniforms that included a ban on all facial piercings. Following the issuance of the September ban on facial piercings, the employer ordered the employee to remove her piercings. When she failed to do so, the employer issued a written warning. She failed to remove the facial implants because they could not easily be removed like other piercings, requiring instead plastic surgery at great expense. She then filed a grievance contesting the employer’s decision.

An employer is permitted to adopt rules of personal appearance as long as the rules have a reasonable relationship to (1) the employer’s image or (2) health and safety considerations. Furthermore, employers are not permitted to regulate an employee’s personal appearance away from work, unless harm is caused to the employer’s business by that appearance.

In this case, the employer had the right to institute the dress policy. The arbitrator determined, however, that the ban on facial piercings was unreasonable because the employer could not prove any harm to its business. The employer, for example, never surveyed customers about their attitudes to the piercings, never learned whether other transit systems disciplined employees for facial piercings, and never sought to find out if piercings had an impact on funding. The arbitrator noted that many riders themselves had piercings and that no complaints had been received. As a result, he sustained the grievance and ordered that the written warning be removed from her file.

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