A staffing requirement for safety purposes and job security provisions set out in a collective bargaining agreement distinguished

A staffing requirement for safety purposes and job security provisions set out in a collective bargaining agreement distinguished

Matter of City of Lockport (Lockport Professional Firefighters Assn., Inc.), 2016 NY Slip Op 05254, Appellate Division, Fourth Department

The collective bargaining agreement [CBA] between the City of Lockport [City] and the Lockport Professional Firefighters Assn., Inc. [LPFA], the exclusive bargaining representative for all firefighters employed by the City except the fire chief, included the following:

1. The City agreed to "staff all equipment with adequate firefighters to assure that any evolutions the firefighters are called upon to perform can be conducted with enough firefighters to assure the safety of the staff performing the evolution;"

2. LPFA, in exchange for the City’s agreement to maintain a minimum staffing level of nine firefighters per shift,* agreed to the relocate dispatch communication duties out of the department;

3. The parties agreed that the City, subject to the terms of the CBA and applicable law, could adjust staffing levels "to account for changes in population, technology, apparatus, or other relevant circumstances;" and;

4. The parties agreed to "meet cooperatively for the purpose of discussing issues relating to firefighter and public safety issues[,] and logistical issues[,] associated with the transfer of dispatch duties."

The Board of Fire Commissioners subsequently voted to remove an ambulance from service and to reduce the minimum staffing level from nine firefighters per shift to seven firefighters per shift, which changes were then implemented by the fire chief.

LPFA filed a grievance contending that the City had violated the CBA by reducing the number of firefighters per shift from nine to seven and demanded the restoration of the minimum staffing level to nine firefighters per shift. The City denied the grievance and LPFA demanded that the matter be submitted to arbitration. 

The City objected to submitting the issue to arbitration and initiated a CPLR Article 75 proceeding seeking a permanent stay of arbitration. Supreme Court denied the City’s petition and granted LPFA’s "cross-motion" compel arbitration.  The City appealed the Supreme Court’s ruling.

Affirming the lower court’s determination, the Appellate Division, citing Matter of Alden Cent. Sch. Dist. [Alden Cent. Schs. Administrators' Assn.], 115 AD3d 1340, held that "It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." In making that determination, the court conducts a two-part analysis: first it must determine if there is public policy prohibition against arbitration of the grievance. Second, if no such prohibition is found to exist, the court must determine if the parties did, in fact, agreed to arbitrate the particular dispute by examining the provisions of the relevant collective bargaining agreement.

The City had contended that the staffing provision in the CBA constituted a job security provision** and job security provisions are not arbitrable as a matter of public policy.

The Appellate Division, however, rejected the City’s public policy argument, explaining that New York State “has a strong public policy favoring arbitration of public sector labor disputes …, and 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'."***As a general principal in determining the arbitrability of the issue, said the court, "any doubts as to whether [an] issue is arbitrable will be resolved in favor of arbitration."

Further, opined the Appellate Division, Supreme Court did not err in determining that the staffing provision at issue constituted a safety provision, i.e., a condition of employment, rather than a job security provision that could be subject to the public policy exception to arbitration.

In contrast to a job security provision in a CBA, which typically provides for “no layoff" during the life of the agreement, the Appellate Division said that the staffing provision relied upon by the City “does not operate to mandate a total number of firefighters that must be employed, nor does its stated intent relate to job protection; rather, the staffing provision relates solely to the minimum number of firefighters required to be present for each shift.”

Significantly, said the court, in drafting and agreeing to the staffing provision, “the parties expressly sought to ensure firefighter and public safety associated with the transfer of dispatch communication duties that allowed for the reduction in the minimum per shift staffing level” to nine firefighters per shift.

Accordingly, the Appellate Division concluded that Supreme Court properly determined that the staffing provision is not a job security provision, and therefore not subject to analysis under the narrow public policy exception to arbitration.

Turning to the second branch of the analysis, the arbitrability of the issue, the Appellate Division said that “it is undisputed that the parties agreed to arbitrate all grievances arising from the CBA.” Accordingly, the question “Does the reduction of the minimum staffing level from nine firefighters per shift to seven firefighters per shift based on the elimination of an ambulance from service constitutes a violation of the CBA?” goes to the merits of the grievance itself, not to its arbitrability and thus is a matter for the arbitrator to resolve.

* This minimum staffing level of nine firefighters per shift was less than the minimum level set in a prior arbitration award, which award had provided for a minimum staffing level of ten firefighters per shift.

** A job security provision essentially provides that, at least for the duration of the agreement, an employee need not fear losing his or her job except as otherwise permitted by law.

*** See Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 133 AD3d 1358

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05254.htm

An individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony

An individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony

Matter of Valvo (Commissioner of Labor), 2016 NY Slip Op 05017, Appellate Division, Third Department

Labor Law §593 (4) provides that a person who loses his or her employment as a result of an act constituting a felony in connection with such employment is disqualified from receiving benefits for 12 months following the end of such employment. As the Court of Appeals explained in Matter of Sinker [Sweeney], 89 NY2d 485, "a felony is 'in connection with' employment for purposes of Labor Law §593(4) if it results in breach of a duty, express or implied, [a] claimant owes an employer."

Nicholas Valvo, a sanitation worker for a municipal employer, was arrested on charges of grand larceny in the third degree and scheme to defraud in the second degree. His employment with the municipality was terminated on February 28, 2013 based upon his disciplinary history and the arrest. He then applied for, and received unemployment insurance benefits, including regular and emergency unemployment insurance compensation benefits, totaling $16,488.

Valvo subsequently resolved the criminal charges filed against him by pleading guilty to two counts of grand larceny in the second degree and grand larceny in the third degree.

The Department of Labor, however, issued an initial determination finding that, among other things, that Valvo was disqualified from receiving unemployment insurance benefits under Labor Law §593(4) because he had lost his employment as a result of acts constituting a felony. The Department charged him with a recoverable overpayment of the unemployment insurance benefits he had received and assessed a penalty of $2,473 due to his willful misrepresentations to obtain such benefits.The Unemployment Insurance Appeal Board sustained the Department’s decisions and Valvo its ruling.

The Appellate Division upheld the Appeal Board’s decision, explaining that Valvo’s “larcenous conduct raised serious questions as to his integrity and suitability for municipal employment … given the detrimental impact his continued employment could have had upon the public's trust in municipal employees.” Accordingly, said the court, it saw no reason to disturb the Board's determination that Valvo’s misconduct was sufficiently connected to his employment as to disqualify him for unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05017.htm

Kelly Cummings appointed Deputy Chief of Staff and Senior Advisor to the Governor

Kelly Cummings appointed Deputy Chief of Staff and Senior Advisor to the Governor

Source: Executive Chamber

On July 6, 2016, Governor Andrew M. Cuomo announced the appointment of Kelly Cummings as deputy chief of staff and senior advisor and will be reporting to the governor. The Governor said “Kelly is a proven leader who for years has operated at the highest levels of state government and I am proud to have her join this administration. With her talent, experience and expertise, she will be a great addition to our team and we look forward to working with her to move New York forward."

Ms. Cummings was the Director of Communications for the Senate Majority since 2011. In that position she has managed overall communications and press inquiries for the Senate Majority Conference and acted as chief spokesperson for the Senate Majority Leader.

In her more than 20 years in the State Legislature, Ms. Cummings has held a number of communications and policy positions in both the Senate and Assembly. Ms. Cummings previously served as director of policy development for the Senate Minority where she assisted senators and their staff in developing, drafting and publicizing new legislative initiatives. 

Earlier Ms. Cummings served as chief of staff to Senator Charles Fuschillo where she managed operations, developed legislation and directed press and communications. Ms. Cummings also worked as communications director and director of public affairs for the Assembly Minority from 2002-2005.

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

OATH Index No. 1389/16

A New York City sanitation worker tested positive for amphetamine and methamphetamine in the course of a random drug test. He contended that the test should have been voided because his urine sample was not in his view the entire time before the specimen was sealed. The sample, however, did remain within the exclusive control of the specimen collector the entire time.

OATH Administrative Law Judge Noel R. Garcia found that this error in the collection process did not significantly affect the sanitation worker’s right to a fair and accurate test and that the appointing authority established a proper chain of custody.

As this was the employee’s third violation of the Department’s substance abuse policy, Judge Garcia recommended termination of employment. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1389.pdf

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Van Rabenswaay v City of New York, 2016 NY Slip Op 05051, Appellate Division, First Department

In this appeal of an unsatisfactory performance rating for the school year, the Appellate Division sustained Supreme Court’s dismissal of Anne Van Rabenswaay’s CPLR Article 78 petition. The court explaining that Rabenswaay failed to demonstrate that her U-rating was arbitrary and capricious, or made in bad faith.

The Appellate Division found that the record showed that Rabenswaay had failed to timely complete individualized education plans (IEPs) for at least five of her students, notwithstanding repeated warnings and offers of assistance from the IEP coordinator. This, said the court, provided a rational basis for appointing authority’s rating Rabenswaay’s performance for the school year as unsatisfactory.

Rabenswaay had offered various excuses in her defense. The Appellate Division, however, said that even if the excuses tendered by the educator were valid, they would not warrant a finding that the U-rating was arbitrary and capricious under the circumstances. Citing Maas v Cornell Univ., 94 NY2d 87, the court explained that “[t]o accept [the excuses] would amount to second-guessing the determination that [Rabenswaay’s] repeated failure to timely complete the IEPs reflected a pedagogical deficiency that merited the U-rating.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05051.htm

From the LawBlogs -- for the week ending July 2, 2016

From the LawBlogs -- for the week ending July 2, 2016

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Whether CDL was essential function of diabetic’s job properly put to jury

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Texas has standing to challenge EEOC Guidance on criminal background checks as final agency action

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Disciplinary Interviews and Compelled Reports -- Garrity Warnings - Despite the protections in Garrity, a state employee can waive those rights after he is fired and allow his prior compelled statements to be used by the federal government in a criminal investigation concerning the death and beating of an inmate, provided the waiver was voluntary, knowing, and intelligent. Further, in this case, the statements made by a corrections officer were not compelled because he did not show that he subjectively believed that his statements were compelled on threat of job loss, and that this belief was "objectively reasonable." But even if they were compelled, he adequately waived his Garrityprotections, United States v. Smith, #13-15476, 2016 U.S. App. Lexis 7762 (11th Cir.). 

Disciplinary Procedures - In General - A female tenth grader took a pie to firefighters. One male firefighter gave her a tour of the station and took a picture of her next to a fire engine. He got her email address to send her the picture and subsequently engaged in a risqué exchange of emails. After the girl's father complained, the firefighter was assigned to a training center where he allegedly touched a female co-worker in an unwelcome manner and made "inappropriate" remarks about their private lives. After an investigation, he was fired. In reviewing the disciplinary action, the trial court did not err in finding that the email exchange, if with a willing unmarried adult, would not violate any existing policy, and it was not alleged in any charge that the firefighter knew the girl was a minor, but the question could be further reconsidered on remand. The trial court, which set aside the termination, did err in failing to consider interview transcripts regarding the firefighter's behavior towards the female co-worker. Seibert v. City of San Jose, #H040268, 2016 Cal. App. Lexis 435. 

Fair Labor Standards Act - Overtime in General - Current and former police officers claimed that the city violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-19 by failing to include payments of unused portions of their benefit allowances when calculating their regular rate of pay, resulting in lower overtime pay. The federal appeals court agreed with this claim as the money paid for unused benefits was payment for work. The plaintiffs were entitled to liquidated damages because the city failed to show that it attempted in good faith to comply with the law. Flores v. City of San Gabriel, #14-56421, 2016 U.S. App. Lexis 10018 (8th Cir.). 

Firearms Related - Editor's Case Alert - Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983. Duberry v. District of Columbia, #15-7062, 2016 U.S. App. Lexis 10096 (D.C. Cir.). 

First Amendment Related - A federal employee failed to show that she was not promoted because of comments in her performance evaluation when that evaluation was not shown to be actually used in the promotion process. Accordingly, even if comments in the evaluation referred to her protected First Amendment speech (being quoted in a newspaper article about race discrimination within the agency employing her), she could not show that she was not promoted because she exercised her First Amendment rights. Performance ratings that have a negative impact on promotion potential do not constitute an adverse employment action unless the rating actually led to the denial of the promotion. Wilson v. Miller, #15-1415, 2016 U.S. App. Lexis 7401, 41 I.E.R. Cas. (BNA) 469 (8th Cir.). 

Handicap/Abilities Discrimination – Disability - A courthouse employee who assisted pro se litigators claimed that before she left to take a better job she was discriminated against because of her black race and her disability of chronic fatigue syndrome. Upholding summary judgment for the defendants, the court noted that the county was her employer and that all alleged discriminatory acts had been committed by state employees, and could not impose liability on her employer. Further, the two specific requests she had made on account of disability--seeking time off--had both been granted. Wells v. Winnebago County, #15-1805, 2016 U.S. App. Lexis 7647, 129 Fair Empl. Prac. Cas. (BNA) (7th Cir.). 

Handicap/Abilities Discrimination -- Reasonable Accommodation [Editor's Case Alert] - A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions." Adair v. City of Muskogee, #15-7067, 2016 U.S. App. Lexis 9636 (10th Cir.). 

Political Activity - Patronage Employment - The chief deputy clerk in a courthouse asserted that her firing constituted unlawful retaliation for political affiliations as well as gender discrimination. Rejecting the political affiliation claim, the appeals court found it was permissible to fire her on that basis as she was in a job where it was appropriate to require personal and political loyalty. She also failed to provide any evidence that the reasons given for her termination were a pretext for sex discrimination. DePriest v. Milligan, #15-1365, 2016 U.S. App. Lexis 9630 (8th Cir.). 

Retaliatory Personnel Action - An employee of a state agency claimed that she suffered unlawful retaliation for opposing an employment practice prohibited by Title VII and other employment discrimination laws. The conduct she opposed - the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims - was not a “practice made an unlawful employment practice” by Title VII. Cooper v. N.Y. State Dep’t of Labor, #15-3392, 2016 U.S. App. Lexis 7588, 100 Empl. Prac. Dec. (CCH) P45543, 129 Fair Empl. Prac. Cas. (BNA) 44 (2nd Cir.). 

Whistleblower Protection - An employee of the Centers for Disease Control and Prevention claimed that agency officials violated the whistleblower protections of 5 U.S.C. 2302(b)(8)(A) by retaliating against him for disclosures about agency practices, including that the Pocket PCs were outdated, had bad batteries, lost data, and presented data-entry problems. Because of this he was allegedly not invited to certain meetings, and discouraged from participating in certain projects to which he was assigned. Various supervisors also allegedly treated and evaluated him poorly and placed him on a Performance Action Plan. A federal appeals court reversed the dismissal of the claim, finding that the employee had adequately alleged that at least one of his supervisors knew of the disclosure at issue. Cahill v. Merit Sys. Protection Bd., #15-3152, 2016 U.S. App. Lexis 8554 (Fed. Cir.).

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