Direct dealings with members in a negotiating unit

"Direct dealing" involves an employer establishing or attempting to establish a negotiating relationship with one or more unit members to the exclusion of the employees' exclusive bargaining agent.

In Local 650 and the City of Buffalo, 30 PERB 3020, PERB decided that the City of Buffalo had not engaged in "direct dealing," but PERB concluded that the city had unlawfully interfered with an employee's statutory right to representation.

A part-time administrative program aide, [Aide] was initially hired  and scheduled to work from 10 a.m. until 3 p.m. Her supervisor allowed her some flexibility, but a dispute eventually arose about her hours. The City eventually abolished the Aide's position and terminated her.

PERB found that the record demonstrates that Aide would not have been terminated nor her position abolished had the Local agreed to her starting at 10 a.m. Indeed, PERB's decision reports that the City admitted that Aide was terminated "because [the Local's] proposals on her behalf in negotiations regarding work schedule were 'unacceptable' to the City."

PERB decided that Aide's termination violated §209-a.1(a) of the Civil Service Law [the Taylor Law] regardless of whether her work schedule was a mandatory or non-mandatory subject of negotiations, explaining that the City's action violated Aide's right to have union representation within the meaning of §202 of the Taylor Law.

It seems clear that an employer does not have a legal duty to negotiate with a union if a subject matter proposed for discussion is non-mandatory. But the absence of a legal duty to bargain does not mean that the employer is allowed to take action against an employee because of the nature of  the help extended to that employee by the union. Simply put, PERB held that Buffalo based its action on an impermissible reason.

The City could have taken action against Aide for not complying for its directive regarding her reporting to work. But it could not lawfully terminate her simply because the local had pursued a negotiating position that the City considered impossible.

PERB ordered the City to recreate Aide's former position and reinstate her to it, with back salary and benefits.

State employees sued in a civil action for deprivation of rights brought pursuant to 42 U.S.C. §1983 assert a qualified immunity defense

The Second Circuit United States Circuit Court of Appeals' decision summarizes the events giving rise to this litigation as follows:

1. In 2008 an educator [Plaintiff] was investigated by the New York State Education Department [Department] and charged committing acts of sexual misconduct  in 1989 and 1992 with former students, resulting in a one-year suspension of his state licenses;

2. In 2011 Plaintiff obtained employment as a substitute teacher with another School District [District] in New York State;

3. In 2012 the Department informed the Districtʹs superintendent that it "had opened an ethics investigation" into Plaintiff's conduct;

4. Plaintiff was terminated from his substitute teaching position with the District;

5. Employees of the Department [Defendants] ultimately concluded that there were no grounds for an investigation.

Plaintiff brought suit in federal district court pursuant to 42 U.S.C. §1983 with respect to the termination of his employment by the District against the Defendants, whereupon the Defendants asserted a qualified immunity defense.*  

The district court denied the Defendantsʹ motion for summary judgment without addressing the Defendants' claimed qualified immunity defense.  In response to Defendants' motion for reconsideration, the district court, addressing that issue for the first time,  concluded that the Defendants were not entitled to qualified immunity because Plaintiff had demonstrated that Defendants "had violated clearly established law."

Defendants appealed, arguing that the district court erred in denying their motion for summary judgment based on the claim of having qualified immunity.  The United States Court of Appeals, Second Circuit, sustained Defendants' appeal, explaining that:

[a] Plaintiffʹs due process claim failed because he did not show a clearly established right to the meaningful opportunity to utilize his teaching license;  and

[b] Plaintiff also failed to demonstrate that the Defendantsʹ conduct was sufficiently stigmatizing under clearly established law so as to give rise to his  ʺstigma-plusʺ claim.  

Accordingly, the Circuit Court ruled that the Defendants were entitled to qualified immunity and that the district court erred in denying their motion for summary judgment.

As the coda to the decision, the Circuit Court opined that "We are not unsympathetic to [Plaintiff], who may have been unfairly treated by the [Defendants] with unfortunate results.  But for the reasons set forth [in its opinion, Defendant's] behavior did not give rise to a cause of action under section 1983 that could survive the [Defendantsʹ] qualified immunity defense." **

* In Doninger v. Niehoff, USCA, Second Circuit, 642 F.3d 334, writ of certiorari denied, 132 S.Ct. 499, the court addressed the issue of determining if a public officer may claim a qualified immunity from civil lawsuits. The Second Circuit said that two tests are involved in determining if a claim of qualified immunity is available to the officer or the employee. The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [individual's] conduct violated a constitutional right. If the plaintiff’s cause of action survives this test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.” If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity. 

** See https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

The decision is posted on the Internet at: 

http://www.ca2.uscourts.gov/decisions/isysquery/6fedbfbb-bee0-4f8a-9932-91f93897f8a5/4/doc/18-1298_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6fedbfbb-bee0-4f8a-9932-91f93897f8a5/4/hilite/

Considering certain arguments advanced by a petitioner for a new trial following an adverse decision

The appellant [Plaintiff] in this action sued his employer, a public institution of higher education and a number of its administrators as individual defendants [Defendants] alleging that he was not reappointed to his teaching position in retaliation for his complaints alleging unlawful discrimination. A jury ultimately returned a verdict in favor of the Defendants and Plaintiff appealed the federal district court's judgment and denial of his motion for a new trial.

Among the issues raised by Plaintiff in his appeal were the following:

1. The district court's evidentiary rulings.

The United States Circuit Court of Appeals, Second Circuit, said that such ruling are reviewed for abuse of discretion, citing Manley v. AmBase Corp., 337 F.3d 237, and “[u]nless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order." Further, said the court, at every stage of the proceeding the court must disregard all errors and defects that do not affect any party’s substantial rights. 

Applying this deferential standard of review, the circuit court ruled that the district court did not exceed the bounds of its discretion in admitting Plaintiff's teaching evaluations from his previous university for two purposes: (a) to impeach Plaintiff’s credibility given his representation that he generally received good teaching evaluations; and (b) to provide after-acquired evidence of misrepresentations that could mitigate damages. In this instance, said the court, the district court "reasonably determined that the probative value of such evidence for impeachment purposes outweighed any potential prejudicial effect because [Plaintiff's] credibility was critical to his retaliation claim."

2. The district court's jury instruction concerning "after-acquired evidence."

The Circuit Court found that Plaintiff had failed to object to the challenged instruction during the trial and a  party who fails to object to a jury instruction at trial waives the right to make that instruction the basis for an appeal. Further, observed the court, assuming that Plaintiff had objected to this instruction, any error would be harmless because it relates only to the calculation of damages and in this instance the jury found for the Defendants and, thus, never calculated damages.

3. Denial of Plaintiff's motion for Venue Transfer.

To successfully challenge the denial of a motion to transfer of venue after entry of a final judgment, a party must demonstrate that the outcome of the trial would have been different had the case been transferred. The circuit court found that Plaintiff failed to meet this burden as he did not contend that the outcome of his trial would have been different in the Southern District of New York. The court also noted that Plaintiff's claim that "a Title VII retaliation claim cannot get a fair hearing in the Northern District [of New York] is belied by the fact that a jury found in his favor at [Plaintiff's] first trial" in the course of this litigation.

4. Challenges to the district court’s discovery rulings.

Although Plaintiff complained that he was prejudiced by the district court’s limitation on his discovery request, the Circuit Court observed that Plaintiff "failed to seek any additional discovery from the [district] court despite the court’s express invitation to do so." In addition, observed the Circuit Court, Plaintiff never objected to the Defendants’ compliance with the court orders until after his second trial resulted in a verdict against him, when he raised it for the first time as a ground for a new trial. Having failed to reserve these issues below, the Circuit Court held that Plaintiff cannot now pursue them on appeal and deemed them waived.

5. Denial of Plaintiff's motion for a new trial on the ground that the jury’s verdict was against the weight of the evidence.

The Circuit Court of Appeals explained that "It is well established that '[a] district court’s denial of a motion for a new trial on weight-of-the-evidence grounds, is not reviewable on appeal", citing Rasanen v. Doe, 723 F.3d 325.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6daacf97-43d4-4cc0-bde4-e05fc35168b9/1/doc/17-3512_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6daacf97-43d4-4cc0-bde4-e05fc35168b9/1/hilite/

An appointing authority may, as a matter of discretion, elect not to fill a vacant position notwithstanding the availability of an appropriate eligible list for the position

After reviewing the duties and responsibilities of the position of stenographer then  held by Plaintiff, the County Civil Service Commission advised  the Appointing Authority that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the Appointing Authority. Plaintiff's name was first on the list certified to the Appointing Authority.

The Appointing Authority returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time."*

Plaintiff sued, seeking a court order compelling the Appointing Authority to appoint her to the reclassified position, an action "sounding in mandamus."** Supreme Court never reached the merits of Plaintiff's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling explaining  that although Plaintiff knew that Appointing Authority was not going to appoint her to the position of senior stenographer, she waited more than six months before commencing her CPLR Article 78 action.

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later." A party, however, cannot delay in making his demand, thereby extending indefinitely the period during which he or she is required to take action. In this instance the Appellate Division decided that Plaintiff had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing.***

Although Plaintiff's action was found untimely and thus not decided on the merits, as a general proposition an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available. For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment." 

In the event a court or a civil service commission is confronted with an eligible's demand to be appointed to the vacancy sought, it will typically decline to act on the ground that it lacks the power to command an appointing authority to fill a vacancy, which is  a power vested in the appropriate appointing authority.

Indeed, the genesis of the modern "rule of three"  is the Court of Appeals' decision in People v Mosher, 163 NY 32 as prior to 1900 New York State civil service appointments from eligible lists were based on "the rule of one," also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission to the appointing authority. In 1900 "the rule of one" was struck down by the high court as unconstitutional. 

In Mosher the Court explained that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power."

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1 permits the appointing authority to select from among those attaining the highest scores on the eligible list and who are interested in the appointment. The rule of three was ruled valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.****

However, the so-called Rule of Three is not literally "the rule of three."

In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority may only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the preferred list willing to accept the appointment or keep the position vacant.

In addition, the Court of Appeals has concluded that no strong public policy prohibits an appointing authority from agreeing to be bound by a "rule of one" -- appointing the eligible standing highest on the list certified to fill the position -- in the course of collective bargaining where a probationary period must be successfully completed in order for the appointee to attain tenure in the position.

* Although the decision does not indicate Plaintiff's status following the reclassification of her former position, as public policy disfavors "reclassifying an individual out of a job" presumably Plaintiff was reassigned to another available stenographer position.

** A writ of mandamus is one of a number of "ancient writs" and was issued by a court to command the performance of an official or ministerial duty by a public officer or a lower court. A Writ of Prohibition is another of the "ancient writs." It is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal, typically on the grounds that the lower tribunal "lacked jurisdiction." Other "ancient writs" include the writ of injunction - a judicial order preventing a public official from performing an act. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

*** Laches results from the failure of a party to initiate action to enforce a claimed right before the expiration of the controlling statute of limitations.

**** See, also, Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981, a case involving an employee eligible for contingent permanent appointment to a temporarily vacant position did not attain such status as the result of his being  provisionally appointed to the temporary vacancy absent the appointing authority affirmatively designating the appointment as "contingent permanent." The Court of Appeals explained that said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so.

The decision is posted on the Internet at:

https://www.leagle.com/leaglesearch?cite=239+A.D.2d+415+