Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Source: New York City Office of Administrative Trials and Hearings

Employee's "whistleblower defense" rejected by Administrative Law Judge

OATH Index No. 1883/17

A New York City claims examiner raised a Civil Service Law §75-b whistleblower defense to misconduct charges filed against the individual

Administrative Law Judge Noel R. Garcia found the employee did not establish that the sole motivation for petitioner’s charges was to retaliate against the employee for the complaints that he had filed.

Rather, the ALJ found that the persons who investigated and prosecuted the disciplinary matter had an independent and good faith basis to file the charges.

Among Judge Garcia's findings:

1. Petitioner proved respondent took 288 days of unauthorized absence;

2. The individual operated of a personal watercraft in Florida while on leave for a purported injury; and

3. The employee submitted false documents during the hiring process that indicated that He was employed as an Assistant District Attorney during a period when he, in fact, worked as a paralegal.

Penalty recommended by the ALJ: termination of employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1883.pdf

Only one of several disciplinary charges filed against the employee sustained by proof submitted by the appointing authority at the disciplinary hearing

OATH Index No. 1958/17

In response to complaints filed against a New York City correction officer, the correction officer was charged with aggravated harassment, violating EEO policies, failing to maintain professional boundaries with a female recruit and suppressing the recruit's report about his conduct.

OATH Administrative Law Judge Kara J. Miller found the evidence inconclusive on most charges because the witnesses for both sides had credibility issues, making it difficult for the appointing authority to sustain its burden of proof.

Judge Miller sustained only the charge that the officer failed to maintain professional boundaries by referring to the complainant as “redbone”.

A five-day suspension without pay was recommended.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1958.pdf

Placing employee on "emergency involuntary leave" as authorized by CSL §72.5  sustained

OATH Index No. 1750/18

An employee challenged his placement on emergency involuntary leave for unfitness to perform his job duties due to mental disability pursuant to §72.5 of the Civil Service Law.

Co-workers credibly testified about the employee’s sudden, unprovoked outbursts, his verbal altercations with women who worked in his unit and his repeated, unsupported claims that the women are sexual predators who physically and verbally harassed him.

A psychiatrist who examined the employee found the employee was unfit because he could not get along with his co-workers.

ALJ Zorgniotti found petitioner proved that the employee was unfit and that petitioner properly placed him on emergency pre-hearing leave.  

The decisions is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1750.pdf

Determining if a dispute between a public employer and an employee organization is arbitrable

Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03356.htm

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Joyce v City of New York, 2018 NY Slip Op 03433, Appellate Division, First Department

The Appellate Division annulled the determination of respondent New York City Department of Education [DOE] sustaining the "unsatisfactory" rating for the 2010-2011 academic year give to John Joyce, a tenured teacher.

The court said that the record demonstrates "deficiencies in the performance review process" that resulted in Mr. Joyce being given an unsatisfactory rating for the 2010-2011 academic year.

Citing Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484, and Matter of Richards v Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 AD3d 605, the Appellate Division noted that these deficiencies "were not merely technical, but undermined the integrity and fairness of the process."

Mr. Joyce had received a satisfactory rating for the previous academic year and, in contravention of its own procedures, DOE failed to place him on notice that he was in danger of receiving an unsatisfactory rating for the 2010-2011 academic year until after April 28, 2011.

Although DOE's procedures required that tenured teachers in danger of receiving an unsatisfactory rating have "formal observations including a pre-observation and post-observation conference by the principal ... as part of a prescriptive plan to improve their teaching," Mr. Joyce received only one formal observation which took place one week before the end of the academic year and was not part of a prescriptive plan to improve his performance as a teacher.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03433.htm

Report Reviews Impact of Taylor Law

Duly noted:

The Empire Center has issued a 50th anniversary update of its seminal 2007 report on New York’s landmark Taylor Law, which governs labor relations in state and local government, 50 Years Later, Report Reviews Impact of Taylor Law. 

The report is posted on the Internet at:

https://www.empirecenter.org/publications/taylor-made/?utm_source=Empire+Center+emails&utm_campaign=5422cbfc52-EMAIL_CAMPAIGN_2018_05_29_07_25&utm_medium=email&utm_term=0_6cc7720848-5422cbfc52-290604285

Authority of the arbitrator

Authority of the arbitrator

City of New York v District Council 37, 2018 NY Slip Op 03220, Appellate Division, First Department

Supreme Court granted the City of New York's petition to vacate an arbitration award, denied the grievance, and dismissed this proceeding the City brought pursuant to CPLR Article 75. The Appellate division unanimously affirmed the Supreme Court's ruling.

The court explained that an arbitrator exceeds his or her powers when the "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

However, the fact that there is a provision in a contract that the arbitrator may not alter or modify does not limit the arbitrator's power to resolve the dispute by interpreting the contract based on his or her findings as to the intent of the parties.

In contrast, an arbitration award should be vacated where it is not derived from the contract but from the deliberate and intentional consideration of matters outside the contract.

Here, said the Appellate Division, the record shows that the arbitration award added to or modified the collective bargaining agreement as the arbitrator's decision rewrote the contract for the parties by expanding the number of workers entitled to the assignment differential, when the contract expressly limited the differential to workers at a specific facility.

This exceed the arbitrator's powers as such an action was expressly prohibited in the agreement

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03220.htm