Modifying or vacating an arbitration award after a consensual arbitration

In this action brought pursuant to CPLR Article 75 the employee [Employee] in this appeal sought to have Supreme Court vacate or modify an arbitration award. Employee appealed Supreme Court's denial of his petition and dismissal of the proceeding.

The Appellate Division affirmed Supreme Court ruling, pointing out that the arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement. Citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the court explained that such an award may not be vacated on the ground that the arbitrator exceeded his or her power unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power. 

The court held that Employee failed to demonstrate that the arbitration award violated this standard, "or that any other grounds for vacatur stated in CPLR 7511(b) apply."

Addressing Employee's challenge to the penalty imposed, the Appellate Division opined that award suspending the Employee, a bus driver, for 15 days without pay "as a result of an accident which occurred between a bus he was operating during the course of his employment and a motorized bicycle" was not irrational, and "did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_02789.htm

_____________________

A Reasonable Disciplinary Penalty Under the Circumstances

A 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. 

For more information click on http://booklocker.com/books/7401.html

_____________________

A public employer's motion seeking qualified immunity in the course of litigation must satisfy certain tests

The employee [Plaintiff] sued his former employer, [Defendants] contending [1] that he was dismissed from his position by Defendants without due process and [2] that his termination was an act of retaliation against him by Defendants in violation of the federal Civil Rights Act, 18 U.S.C. §1983, because he had filed a complaint against Defendants alleging racial discrimination . 

Although Defendants moved for summary judgment dismissing Plaintiff's action contending they were entitled to a qualified immunity, the federal District Court determined that they were not entitled to qualified immunity from Plaintiff's "18 U.S.C. §1983" claims "at the summary judgment stage" as "genuine issues of fact existed as to whether Defendants acted 'objectively reasonably' with regard to both claims — as Defendants must do in order to obtain qualified immunity." Defendants appealed.

The Circuit Court of Appeals, Second Circuit, said that the first issue to be resolved was whether it had jurisdiction to adjudicate Defendants' appeal. 

Conceding that an order denying a motion for summary judgment is generally not . . . appealable” except when “the summary judgment motion is based on a claim of qualified immunity,” the court pointed out that there was an exception to this exception. Citing Catone v. Spielmann, 149 F.3d 156, the Circuit Court then explained that “a defendant may not appeal a district court’s summary judgment order — even one addressing the availability of a qualified immunity defense — insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial.”*

In the event the District Court finds that the evidence was sufficient to create a jury issue, as it did in this instance, the Circuit Court said "that is the end of our review" as Defendants’ argument on appeal amounts to a challenge of whether the evidence was sufficient and, in the words of the Circuit Court, "we lack jurisdiction to review the denial of qualified immunity."

Here the District Court concluded that there disputed facts that could lead reasonable jurors to different conclusions about whether Defendants acted “objectively reasonably” and thus deserved qualified immunity. 

Further, observed the Circuit Court, "in assessing Defendants’ argument that they are entitled to qualified immunity on [Plaintiff's] retaliation claim, the District Court noted several additional issues of material fact to be resolved, particularly about whether Defendants acted with a retaliatory motive. As Plaintiff and Defendants differ on this factual issue of intent that is the basis of such a claim, the District Court once again concluded that there were facts were for the jury to consider and decide. 

As the District Court denied Defendants motion for qualified immunity and denied their motion for summary judgment on these claims, finding genuine issues of fact to be resolved at trial, the Circuit Court found that the lower court's ruling was not appealable and dismissed Defendants' appeal.

* In addition, the Circuit Court pointed out that it may not “entertain an interlocutory appeal in which a defendant contends that the district court committed an error of law in ruling that the plaintiff’s evidence was sufficient to create a jury issue on the facts relevant to the defendant’s immunity defense,” citing Salim v. Proulx, 93 F.3d 86. An interlocutory appeal is an appeal of a ruling by a trial court while other aspects of the litigation are still proceeding.

The decision is posted on the Internet at:
https://www.ca2.uscourts.gov/decisions/isysquery/3f7e2016-107a-4218-bded-98fc8f826c58/5/doc/19-2392_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3f7e2016-107a-4218-bded-98fc8f826c58/5/hilite/

The anatomy of the resolution of an alleged failure of a party to negotiate a mandatory subject of collective bargaining in good faith

The New York State Public Employment Relations Board [PERB] found that the Police Benevolent Association of New York State, Inc. [PBA], as the exclusive bargaining representative for certain employees in a negotiating unit, and the State of New York [State] had entered into a collective bargaining agreement [CBA] covering unit personnel that included contract articles addressing winter work schedules, summer work schedules and, as pertinent here, provisions concerning seniority and vacancies, modifying unit members' shifts, and contract grievance procedures. 

State and the PBA met to discuss the winter schedule for the 2012-2013 season during which State proposed a new winter work schedule while the PBA proposed an alternate schedule. State ultimately implemented the winter work schedule it had originally proposed and the PBA filed an improper practice charge with PERB alleging that State had violated Civil Service Law §209-a(1)(a) and §209-a(1)(d) by unilaterally implementing a new winter work schedule.

PBA contended that the winter work schedule imposed by State constituted new terms and conditions of employment and demonstrated a failure to negotiate in good faith over a mandatory subject of  collective bargaining within the meaning of Article 14 of the Civil Service Law. 

State, in rebuttal, argued that [1] PBA had waived its right to bargain by agreeing to language in the CBA that expressly allowed State to unilaterally set unit members' work schedules, [2] it had had satisfied its duty to negotiate the challenged work schedule and [3] PERB lacked jurisdiction to hear PBA's improper practice claim in view of contract grievance procedures set out in the CBA.

A PERB hearing officer [Hearing Officer] found that State had violated Civil Service Law §209-a(1)(d) as there was a duty to negotiate the winter work schedule and ordered the restoration of the prior schedule.* The hearing officer also determined that: 

[1] The parties had engaged in the past practice of reaching an agreement on the work schedule prior to its implementation; 

[2] The record did not support State's claim that PBA had waived its right to negotiate the settling of work schedules; and

[3] State had not satisfied its duty to negotiate the winter schedule. 

PERB's affirmed the Hearing Officer's findings and decision, whereupon State initiated a CPLR Article 78 proceeding in Supreme Court challenging PERB's decision, which Supreme Court transferred to the Appellate Division.

Addressing State's claim that PERB lacked jurisdiction over this dispute as its subject — State's resolution of the work schedule issues — under color that the CBA provided PBA with a right enforceable through the CBA's grievance procedure, the Appellate Division, citing Matter of City of New Rochelle v New York State Pub. Empl. Relations Bd., 101 AD3d 1438, conceded that PERB and courts have interpreted the Civil Service Law to deprive PERB of jurisdiction when the dispute between an employer and an employee organization was "essentially contractual" in nature and when the agreement "provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge." 

In contrast, however, the Appellate Division pointed out that a charge that an employer has violated its statutory duty to bargain in good faith over a matter outside the terms of a CBA is a matter within PERB's jurisdiction," citing Matter of County of Erie v State of New York, 14 AD3d 14.

Considering the provisions in the CBA relied on by State to preclude PERB from hearing the dispute, the Appellate Division concluded that State's reliance on its "assertion that [provisions in the collective bargaining agreement] provide the PBA with a reasonably arguable source of right or a contractual remedy to challenge State's unilateral decision to set the schedule" was misplaced. In the words of the Appellate Division, "As the dispute centered on matters outside of the CBA, we find that "PERB's jurisdictional limitation was not triggered."

The court also rejected State's contention that certain determinations made by PERB were not supported by substantial evidence. Reading the articles in the CBA relied on by State "as a whole," the Appellate Division opined that they do not indicate that the parties "reached an accord" on the subject of the setting of the schedules for each season allowing State to unilaterally implement the schedule and substantial evidence supported PERB's determination that GOER did not satisfy its duty to negotiate the work schedules at issue.

The court also sustained PERB's determination that the PBA did not waive its rights to negotiate the setting of the schedule, as the CBA did not include a waiver that is "clear, unmistakable and without ambiguity," revealing an intent by PBA to relinquish its right to negotiate the work schedules.

With respect to State's challenging PERB's determination that there was an established past practice whereby the parties would reach an agreement on the work schedule prior to its implementation, the Appellate Division observed that "[A] binding past practice is established where the practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue." 

Based on the testimony presented at the hearing, the Hearing Officer concluded that the parties had engaged in the past practice of negotiating work schedules and reaching an agreement prior to the implementation of such schedules. PERB similarly credited the testimony of the witnesses for both State and the PBA, finding that their testimony "did not materially differ as to what had in fact happened in their meetings." The Appellate Division, based on its review of the record, said it was satisfied that substantial evidence supported PERB's determination and declined to disturb it.

Finally, the Appellate Division considered PERB's counterclaim seeking enforcement of its remedial order.** Noting that PERB's issuing remedial orders "are peculiarly matters within its administrative competence" and "should be upheld if [they] can be reasonably applied," the Appellate Division concluded that PERB's determination sought to stop an improper employer practice, a function that was within its purview. 

Determining that the remedies ordered by PERB can be reasonably applied  by State and are not unduly burdensome,  the Appellate Division held that "PERB is entitled to a judgment of enforcement of its remedial order." 

The court then confirmed PERB's determination with respect to PBA's improper practice charge, without costs and dismissed State's petition seeking to vacate PERB's decision.

* The ALJ dismissed the charge alleging a violation of Civil Service Law § 209-a (1) (a), finding no record evidence to support this charge.

** The remedial order required State to "[c]ease and desist from unilaterally implementing the work schedules and required that affected employees be made "whole for wages and/or lost benefits, if any."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_02963.htm

Imposing a wage freeze on certain employees of a political subdivision of the State

In March, 2011, the Nassau County Interim Finance Authority [NIFA] imposed a year-long wage freeze on Nassau County employees. 

Fifteen unions representing these employees sued NIFA, its directors, and other County officials, contending that the wage freeze, because it was a legislative act that was not reasonable and necessary to achieve NIFA’s purported goal of fiscal soundness, violated the Contracts Clause of the United States Constitution* to the extent the freeze obviated the relevant compensation provisions set out in various collective bargaining agreements between Nassau County and the several employee organizations then in place.

Federal district court granted NIFA's motion for summary judgment. The court held that NIFA’s implementation of the wage freeze was administrative, in contrast to being legislative, and, therefore, "did not implicate the Contracts Clause."

The United States Circuit Court of Appeals, Second Circuit, assuming, without deciding, that NIFA’s imposition of the wage freeze was legislative in nature, concluded that the wage freeze was a reasonable and necessary means to achieve NIFA’s asserted end of "ensuring the continued fiscal health of the County."

For that reason, said the court, NIFA's action "did not violate the Contracts Clause," and affirmed the judgment of the district court.

* Article I, Section 10, Clause 1, of the Constitution of the United States provides, in pertinent part, that "No State shall ... pass any ... Law impairing the Obligation of Contracts...."

The decision is posted on the Internet at:
https://www.ca2.uscourts.gov/decisions/isysquery/1e649443-151b-448e-a6b8-0d08ae00804d/1/doc/18-1587_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/1e649443-151b-448e-a6b8-0d08ae00804d/1/hilite/

Applying the principles of progressive discipline

A hospital housekeeping aide [Aide] was served with disciplinary charges alleging Aide was guilty of duty, insubordination, and engaging in disruptive behavior. 

New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia sustained the dereliction of duty charge, finding the hospital did prove that Aide had  failed to clean two locations as directed. 

Judge Garcia, however, found that although Aide's questioning of his assignment could be deemed discourteous behavior, such conduct was not insubordination. To the extent the insubordination charge was meant to encompass the Aide’s refusal to clean the locations in question, it was duplicative. 

Further, the Administrative Law Judge held that the appointing authority failed to prove that the Aide's conduct disrupted hospital operations as alleged. 

In line with the principles of progressive discipline, ALJ Garcia recommended a 30-day suspension, taking into consideration respondent’s prior similar conduct. 

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-1.pdf

________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

________________

May 2020 AELE case notes and publications alert

U.S. Supreme Court Again Declines to Expand Bivens Civil Rights Remedy.

May AELE Law Journal article, http://www.aele.org/law/2020all05/2020-05MLJ101.pdf

May Law Enforcement Liability Reporter: 

This issue has cases on disability discrimination, false arrest/imprisonment: no warrant, firearms related: intentional use, immigrants and immigration issues, public protection: suicidal persons, search and seizure: home/business, search and seizure: person, and search and seizure: search warrants. 

http://www.aele.org/law/2020all05/LR2020MAY.html

May Fire, Police & Corrections Personnel Reporter: This issue has cases on age discrimination, First Amendment, FLSA – administrative & executive exemptions, handicap/abilities discrimination – reasonable accommodation, pregnancy discrimination, religious discrimination, union activity, veterans and other preference laws, whistleblower protection, and workers’ compensation. 

http://www.aele.org/law/2020all05/FP2020MAY.html

May Jail and Prisoner Law Bulletin: 

This issue has cases on COVID-19, disability discrimination: prisoners, medical care, prisoner assault: by officers, prisoner suicide, segregation: administrative, transsexual prisoners, and visitation. http://www.aele.org/law/2020all05/JB2020MAY.html

Hearing officer rejects appointing authority's allegation that employee was unfit to perform the duties of the position within the meaning of §72 of the Civil Service Law

The New York City Department of Health and Mental Hygiene [MH] initiated a Civil Service Law §72 proceeding alleging a school nurse [Employee] was unfit to perform the duties of her position due to schizoaffective disorder.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that MH failed to prove that the Employee was currently unfit to perform the duties of a school nurse and recommended that the proceeding be dismissed.

Employee submitted reports from her psychiatrist and her therapist demonstrating that she had been under their care for more than a year, attended regular appointments with each of them, that she was aware of her mental health condition, and she was diligent about taking her medication. 

Based on the doctor’s reports, Judge McGeachy-Kuls found that it was clear that Employee was actively engaged in her treatment with each of them. Further Employee’s psychiatrist and therapist both expressed “unequivocally” that she was fit to resume her duties as a school nurse and that she is not a danger to herself or to the students.

The decision is posted on the Internet at: 

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2002.pdf

.