Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Matter of Hopton (Commissioner of Labor), 2016 NY Slip Op 00743, Appellate Division, Third Department

Nina Hopton, a correction officer, was served with disciplinary charges alleging that she had violated her employer's rules [1] by having an improper personal relationship with an inmate and [2] by giving false statements to investigators regarding that relationship.

Following a disciplinary hearing held in accordance with Civil Service Law §75, an Administrative Law Judge found there was evidence sufficient to support the bulk of the charges filed against Hopton and recommended that she be dismissed from her position. The appointing authority accepted the findings and recommendations of the Administrative Law Judge and terminated Hopton employment.

Hopton applied for unemployment insurance benefits but the Unemployment Insurance Appeal Board [Board] denied her claim on the ground that she lost her employment due to misconduct. Hopton appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that the Board “properly gave collateral estoppel effect to the factual findings stemming from the disciplinary hearing inasmuch as the record establishes that [Hopton] had a full and fair opportunity to litigate the issue of misconduct at that hearing."

Although Hopton contended that she was appealing the disciplinary determination, the Appellate Division said that such an appeal “does not preclude the application of collateral estoppel.” In any event, said the court, the Board “drew its own conclusions that [Hopton’s] behavior, which involved violations of known policies of the employer and were detrimental to the employer's best interest, constituted disqualifying misconduct for the purpose of [eligibility for] unemployment insurance benefits."

Finding that substantial evidence supported the Board's decision, the Appellate Division said “it will not be disturbed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00743.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits

New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits

Office of the City Comptroller v Paramount Security Group, Inc., OATH Index No. 2553/15

Paramount Security Group, Inc., a services contractor admitted to failing to pay prevailing wages and benefits of $1.8 million to 28 security employees working at the Health and Hospitals Corporation (HHC) offices.

It was undisputed that Paramount failed to pay prevailing wages to its security employees from December 2010 to March 2013. Paramount, however alleged that the entire blame for this violation was on HHC, which Paramount insisted prevented compliance with the prevailing wage law by refusing to approve increased wages.

OATH Administrative Law Judge John B. Spooner found that “the notion that Paramount knowingly violated the terms of its contract based upon verbal directions of HHC personnel, without protesting or seeking approval from a higher authority, was highly improbable” as the contract between Paramount and HHC provided, in pertinent part, that during the term of this agreement, “the contractor shall be responsible for paying the prevailing wage rate in New York City to all of its security guards.” The contract also provided that HHC was “not responsible for any type of payroll increase . . . . [e]xcluding prevailing wage requirements” [emphasis supplied].

The ALJ held that the evidence supports a finding that Paramount’s violations of Labor Law §230 were willful was liable for the wages, benefits due the employees, plus interest and a civil penalty. As to interest, Judge Spooner held that the Comptroller was entitled to  maximum interest, at the annual rate of 16%, from the date the wages and benefits were payable and in addition, Paramount should be assessed a civil penalty of 25% of the total violation.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2553.pdf

A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement

A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement
Raymond Muller v Government Printing Office, United States Court of Appeals, Federal Circuit, No. 2015–3032

Raymond Muller asked his union to have his grievance against his employer, the Government Printing Office [GPO], submitted to arbitration. The relevant contract provision stated that if the grievance was not resolved to the satisfaction of the parties at the agency level “Arbitration must be invoked within 30 days.” The agreement further provided that “[t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit.”

As the grievance was not resolved at the agency level, a timely demand for arbitration was submitted to GPO. GPO referred the matter to arbitration pursuant provisions set out in the relevant collective bargaining agreement. GPO, four months to the day from the date that arbitration had been invoked, wrote to the union and the arbitrator “to ask that the arbitration be closed for failure to comply with the four-month deadline.” After reviewing briefs submitted by the parties the arbitrator concluded that “[T]here is ample evidence in the record, although none is required contractually, that the union … was the direct and primary cause for the failure of the parties to meet the four-month requirement” and dismissed Muller’s grievance as “not arbitrable,” as the “four-month deadline” for holding a hearing had passed.” The arbitrator's decision was appealed and considered by the U.S. Circuit Court of Appeals, Federal Circuit.

The court unanimously disagreed with the arbitrator's determination, explaining that the relevant contractual provision did not require dismissal of the grievance in the event of noncompliance with the four-month deadline. The court characterized the deadline as “merely a nonbinding housekeeping rule” to encourage timely arbitration and applies to both the arbitrator and the parties involved. Nor, said the court, there was no “past practice” in place requiring dismissal under the circumstances of this case.

The Circuit Court noted that “[c]ourts should be careful not to ‘judicialize’ the arbitration process.” Arbitration typically envisions that each case be decided on its own under the controlling contract as “t]he collective bargaining agreement is the primary tool used in the arbitration process.” Thus, said the Circuit Court, [i]t is therefore up to the negotiating parties to impose any internal deadlines on the arbitration process.” Further, the commented the court, in this instance “it is not within the union's power to ensure compliance with the four-month deadline; and the [relevant contract] provision does not specify dismissal as a sanction for failure to comply with the deadline.”

The court also noted that the contract provides that a “failure to meet a deadline will result in the grievance moving to the next step.” Pointing out that the “next step after a hearing” is the decision by the arbitrator, the Court of Appeals characterized such a result as “nonsensical” and that GPO did not contend that “failure to meet the four-month deadline should result in a decision without a hearing.”

Ruling that there was no basis in the text of the master agreement to support the arbitrator's conclusion that noncompliance with the four-month hearing deadline automatically invalidated Muller's claim, the court remanded the matter for a determination of of Muller’s grievance on its merits.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/us-federal-circuit/1723086.html

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Weinstein v New York State Workers' Compensation Bd., 2016 NY Slip Op 00505, Appellate Division, Second Department

Robert S. Weinstein, a Workers' Compensation Law Judge, was served with a notice of discipline by which the respondent sought to terminate his employment based on three charges of insubordination, two charges of misconduct/incompetence, and three charges of misconduct. The arbitrator found that the Workers’ Compensation Board [Board] had proven seven out of the eight charges and that the penalty of termination was proper.

Weinstein filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court granted the Board's motion to dismiss the petition and, in effect, denied Weinstein’s petition and dismissed the proceeding. Weinstein appealed, contending the penalty imposed, termination, “was unduly harsh and disproportionate.”

The Appellate Division observed that although “the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated,” where an arbitration is compulsory, as is here the case, judicial review under CPLR Article 75 requires that the award be in accord with due process. Citing Russo v NYC Department of Education, 25 NY3d 946, the court rejected the Board’s contention to the contrary and held that “the excessiveness of a penalty is a basis upon which an arbitration award may be vacated.

The court ruled that in this instance “the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness, citing the so-called Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the arbitrator rationally determined, based on the evidence presented, that Weinstein was insubordinate and failed to complete his assignments in a timely manner, despite several remedial measures undertaken by his employer, and dismissed his appeal.

The decision is posed on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00505.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York Statecourt 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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The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Moser v Tawil, 2016 NY Slip Op 00501, Appellate Division, Second Department

Robert T. Moser was employed by the City of Middletown as a part-time code enforcement officer. On April 27, 2012, the Mayor of Middletown unilaterally decided to abolish that position for economic reasons. Moser filed a CPLR Article 78 petition seeking a court order annulling the Mayor’s decision that resulted in his termination and directing his reinstatement to his former position with back salary.

Following a hearing, Supreme Court determined that the Mayor had exceeded his authority under the Middletown City Charter and granted Moser’s petition.

The Appellate Division commenced its review of Mayor’s appeal by noting that “The questions that may be raised in a CPLR Article 78 proceeding include "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

Finding that Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer, the Appellate Division explained that the City Charter “grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown by providing that it "shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees."

While the City Charter authorizes the Mayor, with certain limitations, to suspend an employee for cause, there is nothing in the City Charter granting the Mayor authority to unilaterally abolish civil service employment positions.

Sometimes referred as the Doctrine of Legislative Equivalency, the court said that the general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body. Accordingly, “having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them.”

The Doctrine of Legislative Equivalency, applied by the Court of Appeals in deciding the Torre v County of Nassau, 86 NY2d 421, sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00501.htm