Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2017 NY Slip Op 05553, Appellate Division, Fourth Department

The City of Watertown [City] filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying the arbitration of a grievance filed by the Watertown Professional Firefighters' Association Local 191 [Local 191].

Local 191 alleged that the City had violated, among other things, provisions in the parties' collective bargaining agreement [CBA] by failing to maintain required staffing levels of captains within the City's Fire Department and by requiring certain members of the Fire Department to perform out-of-title work as a result of Watertown's failure to maintain the required staffing levels.

Supreme Court denied the City's petition with respect to Local 191's grievance alleging a failure to maintain minimum staffing levels but granted the City petition with respect to dismissing that part of Local 191's grievance alleging the assigning its members to perform out-of-title work constituted a violation of the CBA.

Both the City and Local 191, respectively, appealed these ruling by Supreme Court. The Appellate Division unanimously modified the Supreme Court's decision "on the law" by denying the City's petition in its entirety.

The court then addressed arbitrability of each of the issues set out in Local 191's demand for arbitration.*

1. Failure to maintain minimum staffing levels.

The Appellate Division rejected the City's contention that arbitration of minimum staffing levels "is prohibited by law." In City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, the Court of Appeals held that "the subject matter of the dispute controls the analysis" and "a pending administrative proceeding concerning [a] respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the 'particular subject matter of the dispute' is not authorized,' i.e., not "lawfully fit for arbitration."

2. Agreement to arbitrate.

The Appellate Division also rejected the City's argument that the parties did not agree to arbitrate  Local 191's grievance, indicating that a court's review of that question "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom." Here, said the court, the CBA contains a broad arbitration clause. Thus its determination of the arbitrability of the matter is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Finding that such a reasonable relationship existed, the Appellate Division said it was "the role of the arbitrator, and not the court, to make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

3. Staffing levels.

Local 191 contended that the City demoted eight fire captains and thus violated the CBA by failing to maintain the requisite staffing levels, and by concomitantly forcing other members of the Fire Department to perform out-of-title work, i.e., fire captain's work, without the appropriate compensation. As the CBA included provisions governing both minimum staffing levels and compensation for out-of-title work, the Appellate Division concluded that the dispute is reasonably related to the general subject matter of the CBA.

That said, the court reject the City's argument to the contrary, holding that issue presented by Local 191 involves an interpretation of that provision and the merits of Local 191's grievance and thus is a question to be resolved by the arbitrator, "who is tasked with making 'a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them.'"

4. Grievance procedural matters.

The Appellate Division ruled strict compliance with the step-by-step grievance procedure set forth in the CBA, which procedures the City's maintained Local 191 failed to honor, was a question for the arbitrator to resolve.

In the words of the court, "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

5. Out of title work.

The Appellate Division said that with respect to Local 191's cross-appeal with concerning alleged out-of-title work, Supreme Court was incorrect in dismissing it and modified the lower court's order accordingly.

Rejecting the City's contention that arbitration should be stayed with respect to the issue of out-of-title work because compensation for such work falls within the meaning of "salary," which is expressly excluded from the CBA's definition of "grievance," the Appellate Division ruled that as "there is a reasonable relationship between the dispute over out-of-title work and the subject matter of the CBA ... it is for the arbitrator to determine whether the [compensation for out-of-title work] falls within the scope of the arbitration provisions of the [CBA]."

The Appellate Division ruled "that the [Supreme Court's] order so appealed from is unanimously modified on the law by denying the [City's] petition in its entirety, and as modified the order is affirmed without costs."

* The Appellate Division noted the so-called "two-part test" used by New York courts to determine if a grievance is subject to arbitration, stating "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If there is a prohibition, our inquiry ends and an arbitrator cannot act. "If no prohibition exists, ' the courts then ask "whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05553.htm

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Matter of Walters (Commissioner of Labor), 2017 NY Slip Op 05497, Appellate Division, Third Department

The Unemployment Insurance Appeal Board [Board] found that an applicant for unemployment insurance benefits [Claimant] was ineligible for such benefits because she had "voluntarily left her employment without good cause."

Claimant appealed but the Appellate Division sustained the Board's ruling finding that its decision was supported by substantial evidence. Claimant had advanced three arguments in pressing her claim for benefits.

Claimant first contended that on her last day of employment she would be late reporting for duty because of a "doctor's appointment" and, after she learned that her supervisor had to cover for her, she quit because she was afraid she was going to be reprimanded or terminated.

Citing Welsh [Commissioner of Labor], 138 AD3d 1328, the Appellate Division noted that "resignation in anticipation of being discharged does not constitute good cause for leaving one's employment."

Claimant had also testified that she also quit her job "because the employer made it difficult for her to schedule medical appointments when the employer was short-staffed."

However Claimant admitted that she was never informed that her job was in jeopardy due to being absent from or late to work.

The Appellate Division, citing McCarthy [Commissioner of Labor], 120 AD3d 876, explained that dissatisfaction with one's work schedule "... does not constitute good cause for leaving one's employment."

As to Claimant's final justification for quitting her job, she testified she had quit "due to stress involving a coworker." Claimant admitted, however, that her supervisor had taken certain actions as a result of her report and had changed her schedule so she did not have to work with the individual in question.

The Appellate Division said that it its view, the Board's decision that Claimant left her employment for personal and non-compelling reasons, was supported by substantial evidence and declined to disturbed it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05497.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

OCFS Should Improve Foster Care Placement Oversight

The state Office of Children and Family Services (OCFS) could not show that caseworkers contacted children in foster care within the first 30 days of their placement and lacked documentation proving children were placed in foster homes that met program certifications, according to an auditby New York State Comptroller Thomas P. DiNapoli.

Town of Geneseo – Information Technology and Multiyear Planning (Livingston County)
The board has not adopted policies to sufficiently protect the town's information technology assets and did not ensure that the adopted acceptable use policy was enforced or monitored. Town officials did not adequately segregate online banking duties and did not dedicate a separate computer for online transactions to limit access to online bank accounts. In addition, auditors found the town accumulated excessive fund balance in various funds.

Monticello Joint Fire District – Fiscal Operations (Sullivan County)
The board did not adopt realistic budgets for the 2014 through 2016 fiscal years. Although total budgeted revenues were reasonable, total expenditures were overestimated an average of 20 percent or almost $391,000 annually. The treasurer performs all financial transactions without adequate oversight.

Town of Orchard Park – Recreation Department Cash Receipts (Erie County)
The board did not adopt written policies over financial operations or approve a key department contract. The department generally recorded and deposited cash receipts properly, but did not remit money to the supervisor in a timely manner.

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

2017 NY Slip Op 05608, Appellate Division, Second Department

In this decision the Appellate Division sets out the basic rules followed by the courts when reviewing an administrative determination arrived at following a quasi-judicial hearing by an appointing authority or its designee. In this instance the appointing authority adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75 finding the charged party [Petitioner] guilty of certain disciplinary charges, and terminated the Petitioner's employment.

Confirming the appointing authority's determination is confirmed, the Appellate Division explained:

1. The standard of review of an administrative determination made after a quasi-judicial hearing required by law is limited to considering whether the determination was based on substantial evidence.

2. It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.

3. Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Here, said the court, substantial evidence supported the appointing authority's determination that Petitioner was guilty of committing certain acts of misconduct or insubordination.

As to the penalty imposed, dismissal from the position, the Appellate Division, citing Kreisler v New York City Tr. Auth., 2 NY3d 775, concluded that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05608.htm

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Municipalities and school districts rely on federal aid

Municipalities and school districts rely on federal aid

Source: Harris Beach PLLC, New York Municipalities Blog

A new report released by New York State Comptroller Thomas DiNapoli shows how much municipalities and school districts rely on federal aid. 

The report covers statistics from 2015 and shows that local governments and school districts outside New York City received $4.7 billion in direct federal support.

Click Here to Read Full Post

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

2017 NY Slip Op 05657, Appellate Division, Third Department

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

The Petitioner in action was elementary teacher and had attained tenure with the school district [the District]. In 2004 Petitioner took an unpaid leave of absence and in December 2005 resigned from her position when her eligibility for continuation on unpaid leave expired rather than return to work. In 2007 the District appointed Petitioner to a teaching position and she was subsequently granted tenure by the District upon her satisfactory completion of her probationary period associated with this new appointment in 2009.

In 2010 the District eliminated positions in the elementary tenure area and Petitioner seniority for the purposes Education Law §2510 was based on her service with the District running from 2007. §2510 provides, in pertinent part, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

A temporary kindergarten teaching position then became available for the 2011-2012 school year. However, another former teacher was recalled to fill the vacancy because of her greater seniority. Petitioner, contending that the District had improperly calculated her seniority by ignoring her earlier service with the District and it should have reinstated her to the vacancy. Petitioner initiated the Article 78 action seeking a court order annulling the District's decision and ultimately Supreme Court directed the District to recalculate Petitioner's "seniority rights and all salary due to her."

The District appealed the Supreme Court's decision, contending that Petitioner's resignation from her position in 2005 served to sever her ties with the District and thus she forfeited any claim with respect to her earlier service with the District for the purposes of determining her  seniority rights.

The Appellate Division, citing Kwasnik v King, 123 AD3d 1264, explained that "Although an employee may waive his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary" and be an effective waiver of such rights, the waiver "must be free from any indicia of duress or coercion."

In Petitioner's case the Appellate Division concluded that she resign from her position in 2005 rather than return from her leave when the District informed her that such extension was not possible as she had "exhausted her unpaid leave time." In other words, it was Petitioner decision to resign rather than return to work.

Thus, said the court, there was nothing in the record that could be construed as duress or coercion on the part of the District to obtain her resignation and the record indicated that Petitioner voluntarily resigned for her tenured position "in response to being accurately informed that she had exhausted her [rights to additional unpaid] leave.”

The Appellate Division also noted that Petitioner had been subsequently appointed by the District as a probationary employee after a year and half break in service, thus "belying any claim that she maintained a continuing employment relationship with it."

Accordingly, said the court, the District had properly determined that Petitioner was not entitled to count the period of time she had been employed by it prior to her 2005 resignation "for the purpose of [§2510] seniority" and, reversing the Supreme Court's decision, reinstated the District's initial determination regarding Petitioner seniority for the purposes of her reinstatement from the preferred list.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05657.htm

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The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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