TABLE OF CONTENTS:
Counsels' Corner . . . . . ... . . ...... . . .. . 1
Court Cases . .. .. . ... .. ... . . . .. . . .. . . . 5
PERB Decisions .. . .. .. . . .. . ... . . ... . . 6
Disciplinaries .. .... . .. . .. . . ... ... .. . . 8
Contract Grievances .. . ... . . . . . . . . . . . 17
Civil Service Law . . . . . . . . . .. . . . .... . 22
CSEA LEGAL DEPARTMENT STAFF
Steven A. Crain, General Counsel
Daren J. Rylewicz, General Counsel
Paul S. Bamberger, Senior Counsel
Leslie C. Perrin, Senior Counsel
Ellen M. Mitchell, Senior Associate
Counsel
Eric E. Wilke, Senior Associate
Counsel
Constance R. Brown, Associate
Counsel
Aaron E. Kaplan, Associate Counsel
Jennifer Zegarelli, Associate Counsel
Julie A. Collyer, Legal Systems
Administrator and Legal Office
Manager
Kathy Smail, Senior Legal Assistant
Amee Camp, Senior Legal Assistant
Kathleen Briody, Legal Assistant
Michelle VanKampen, Legal
Assistant
Tara Fallarino, Legal Department
Program Assistant
Lisa Uram, Legal Department
Program Assistant
Lisa McNeil, Legal Assistance
Program Administrator
Kimberly Salamida, Legal Assistance
Program Administrator
Edmund Catrine, Legal Assistance
Program/Legal Services Program
Administrator
Sonia Roberts-Smith, Legal
Assistance Program Assistant
Renee Tate, Legal Assistance Program
Assistant
By: Steven A. Crain and Daren]. Rylewicz
General Counsel
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he United States Supreme Court issued several
decisions related to public employees this summer,
and we will review two of those decisions in this issue
of the Advocate. In Harris v. Quinn the Supreme
Court took aim at undermining established rights of
unions to collect "agency fees" from non-members
who benefit from the contracts that unions negotiate.
In Lane v. Franks, the Court strengthened the legal
protections for whistleblowers under the First
Amendment of the United States Constitution.
In Lane v. Franks, the Court held that the
plaintiff, Ed Lane, could not be fired as a result of
making a complaint about an employee he supervised
who collected over $150,000 for a "no-show"
political job. Lane was an employee of the Central
Alabama Community College. He made a complaint
about an employee he supervised, who was also
a representative to the Alabama State legislature,
Suzanne Schmitz, because she did not perform
any work for the Community College. In fact, she
never even showed up for work. Lane's complaint
about Schmitz was investigated by the College and
eventually led to Schmitz being terminated from her
"no-show" job.
Schmitz's termination was covered extensively
in the news media in Alabama because she was a
State legislative representative, and obtained her
job at the College through her political affiliations.
Schmitz was later indicted by a federal grand jury for counts
of mail fraud and theft concerning her no-show job. Lane
testified against Schmitz at her criminal trial which resulted
in more negative publicity for the Community College and
significant embarrassment for the President of the College,
Steve Franks. Schmitz was convicted and sentenced to two
and-a-half years in prison and ordered to repay the $150,000
she received for her no-show job.
Seven months after Schmitz' trial, Franks terminated
Ed Lane's employment because of his testimony. Lane
then sued Franks and the College for terminating his
employment; he considered his whistleblowing activities to
be protected by the First Amendment right to free speech.
The lower federal courts held that Franks did not
violate Lane's First Amendment rights because Lane spoke
out "as an employee," and was just doing his job. Therefore,
he was not engaged in protected free speech. The United
States Supreme Court disagreed and held that Lane's speech
was protected under the First Amendment.
In the Supreme Court decision, written by Justice
Sotomayor, the Court held: "Speech by citizens on matters
of public concern lies at the heart of the First Amendment,
which was fashioned to assure unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people. This remains true when speech
concerns information related to or learned through public
employment."
The Court further stated that "public employers
may not condition employment on the relinquishment
of constitutional rights." The Court observed that
"government employees are often in the best position to
know what ails the agencies for which they work."
The Supreme Court also disagreed with the lower
court's conclusion that Lane's speech was not protected
because Lane was just "doing his job." The Supreme Court
stated: "The mere fact that a citizen's speech concerns
information acquired by virtue of his public employment
does not transform that speech into [unprotected speech].
2
Speech by public employees on subject
matter related to their employment
holds special value precisely because
those employees gain knowledge of
matters of public concern through their
employment."
This decision shows that public
employees still enjoy protection
under the First Amendment for "blowing the whistle" on
government abuse and malfeasance, provided that the
employee is speaking out about an issue of public concern
Harris v. Quinn involved the right of public sector
unions to collect agency fees in certain circumstances.
In that decision, the US Supreme Court prohibited the
collection of agency fees from home health-care workers in
Illinois. The Illinois home care workers in that case were
paid directly by the State but were hired by the home-bound
individuals who needed assistance. The home care workers
became eligible to unionize in 2003 as a result of an executive
order issued by the Governor of Illinois.
The individuals who needed home care assistance
were called the "customers," and they had the authority
to hire or fire the home care workers. Therefore the home
care workers were not "public employees" as that term is
normally understood, even though the workers negotiated a
collective bargaining agreement with the State. The Court's
decision that agency fees were unconstitutional in that case
was limited to those Illinois home care workers, based on
their unique job conditions in which the "customers" hire
the workers and give them their job assignments.
The Supreme Court explicitly stated that public
employee unions maintain the right to collect agency
fees from non-members who are covered by a union
contract. This right is based on well-established precedent
that employees do not have the right to benefit from the
union contracts while paying nothing toward the costs of
negotiating and administering that contract. The Court's
majority opinion, however, written by Justice Alito, stated
3
that the Court might reconsider that established precedent if those
facts were presented to the Court directly. This case, however,
involved unique home care providers, and the decision was
limited to those facts.
As always, CSEA will continue to enforce rights of CSEAunit employees to the fullest extent, and we will continue to keep
you updated on these important areas of the law.
4
COURT CASES:
Matter of Gittens v. SUNY
(NYS Supreme Court, New York County)
(Judge Carol E. Huff)
Matter No. 13-0459
CSEA filed this Article 78 proceeding seeking to invalidate the
termination of Petitioner from his position as Cleaner when he
allegedly failed to follow proper policies and procedures in violation
of a previous settlement agreement between the parties. Petitioner
was absent from work without authorization for approximately
three weeks. This occurred after his initial vacation request had
been rejected and his subsequent request for FMLA leave was also
rejected for failure to provide medical documentation to substantiate
his request. CSEA did not dispute the fact that the Petitioner had
taken an extended leave without approval, and Petitioner had signed
an agreement waiving his right to challenge a determination of
termination against him. Rather, Petitioner argued that he was not
afforded an opportunity to explain his conduct at the time the penalty
of termination was made by the Employer. The Court held that such
opportunity to explain his leave offered only minimal protection and
did not affect the enforceability of Petitioner's waiver. Therefore, the
petition was denied and the proceeding was dismissed.
Matter of CSEA v. County of Otsego, et al.
(NYS Supreme Court, Otsego County)
Matter No. 13-1006
CSEA filed this Article 78 proceeding seeking to invalidate the
County's transfer of a 174-bed nursing home to a local development
corporation established by the County. The court granted the
County's motion to dismiss the lawsuit stating that CSEA and none
of the individually named petitioners had standing to sue because
they have not suffered any injury as there has been no change in
their employment since the transfer occurred. Even if the court
were to find that petitioners were proper parties, the Court held that
the complaint would still be dismissed as the local development
corporation was properly created and the County appropriately
transferred the property.
5
PERB DECISIONS:
Board Decisions:
Dormitory Authority of the State of New York ("DASNY")
(Chairperson Lefkowitz and Board Member Cole)
Matter No. 13-0264
In this matter, DASNY filed interim exceptions to a letter ruling
by the Assistant Director of Public Employment Practices and
Representation concerning the processing of a unit clarification/unit
placement petition filed by CSEA. The Assistant Director ruled, over
DASNY's objections, that CSEA's petition seeking to add certain
titles to its unit should be processed notwithstanding that the at-issue
titles had previously been designated by the Board as managerial or
confidential. The Board denied DASNY's exceptions and found that
both parties have legitimate arguments that should be raised before
the assigned ALJ.
United Public Service Employees Union ("UPSEU"), Village of
Chatham and CSEA
(Chairperson Lefkowitz and Board Member Cole)
Matter No. 14-0116
CSEA sought permission to file an interim appeal in a representation
proceeding brought by the United Public Service Employees Union
("UPSEU"). The appeal concerned an ALI's ruling which denied
CSEA's motion to dismiss UPSEU's petition to represent a unit of
CSEA blue collar employees. In arguing that UPSEU's petition
was untimely, CSEA maintained that a settlement was reached in
a previous UPSEU petition within the previous 12 months where
CSEA agreed that it would represent blue collar titles and UPSEU
would represent the unit of police officers in the Village. Noting the
apparent unfairness of processing a petition concerning a unit that was
created as a result of the settlement agreement in the earlier petition,
PERB, however, denied CSEA's motion finding that the earlier
petition was not processed to completion because it resulted in a
withdrawal of the petition by UPSEU and, therefore, the PERB Rules
did not prevent its filing.
6
Staff Decisions:
CSEA v. County of Westchester
(ALJ Blassman)
Matter No. 11-1393
CSEA filed this improper practice charge
alleging that the County violated the Act when
it: transferred work exclusively performed by
unit members; terminated two unit employees
due to retaliation for their organizing activity;
and, unilaterally changed the standards for
discipline relating to time and attendance. The
ALJ found that the County unilaterally changed
the terms and conditions of employment for evening cleaners,
whom CSEA was seeking representation of, by limiting time off
for vacations and requiring additional documentation to verify
bereavement leave. Finding that the County failed to refute the
Union's prima facie case that the termination of two bargaining unit
members was due to their participation in organizing efforts, the ALJ
found it was significant that both members were terminated within
one week of the ballot count in which the Union won the election,
that they openly participated in the campaign and that the reasons for
termination, namely time and attendance, were not justified. The ALJ
ordered that the County rescind its new policies for discipline relating
to time and attendance and restore the positions for the two bargaining
unit members that were terminated, with all lost wages and benefits,
and interest at the maximum legal rate.
County of Clinton
(ALJ Carlson)
Matter No. 09-2029
This petition filed by the County sought designation as managerial or
confidential for three positions at the Plattsburgh Airport, including
Airport Operations Coordinator, Airport Fire and Safety Coordinator
and Administrative Assistant. None of the positions were found
to warrant such designations, as the incumbents did not exercise
independent judgment and fundamental control over the direction and
scope of the Airport's mission, participate in collective negotiations,
have a major role in the administration of agreements or in personnel
7
administration, or act in a confidential capacity to a managerial
employee.
County of Westchester
(ALJ Blassman)
Matter No. 12-1109
CSEA filed this improper practice charge alleging that the County
failed to respond to its demand to bargain the impact and to negotiate
the issues surrounding the County's unilateral termination of three
seasonal unit employees. In dismissing CSEA's charge, the ALJ
found that the County did not unilaterally change any disciplinary
or termination procedures relating to the employees in question. In
addition, impact bargaining was not required because the demand was
made after the employees were terminated.
DISCIPLINARIES:
State Disciplinaries:
NYSOPWDD
(Arbitrator Drucker)
Matter No. 13-0798
This Article 33 disciplinary proceeding involved allegations that a
Developmental Assistant I with 10 years of employment struck a
teen-aged resident in the head three times after the resident had seated
himself on the floor. The State's main witness to these allegations
was found credible against the Grievant's denial of any wrongdoing.
Even though the Union argued that this witness had motivation to
fabricate these allegations, the Arbitrator concluded there was no
basis to conjure these accusations against the Grievant. Finding that
the Grievant's actions constitute a fundamental breach of trust and
duty of care, the Arbitrator imposed the recommended penalty of
termination.
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NYSOPWDD
(Arbitrator Riegel)
Matter No. 13-0167
In this Article 33 disciplinary proceeding, the Grievant, a 9-year
employee in the position of Direct Support Assistant, was charged
with striking a resident on his right leg/right thigh with a metal
serving spoon when she attempted to stop him from eating the string
from his socks. While the Grievant admitted striking the resident,
she claimed that she did so only once and it was an accident. In
sustaining the penalty of termination, it was observed that the
Grievant did not honestly admit her wrongdoing but rather distorted
the truth about the event. The evidence, however, demonstrated
that the resident had three red marks and bruises on his thigh and
one on his knuckle, all consistent with the size of the spoon. It was
concluded that striking a resident four times cannot be described as
accidental, and there was no support to the Grievant's claim that she
struggled with the resident when trying to take the sock from him.
According to the Arbitrator, the Employer must depend on these
employees to provide the truth as persons in such positions often work
in the presence of limited supervision.
NYS OMH (Hutchings Psychiatric Center)
(Arbitrator Deinhardt)
Matter Nos. 13-0765; 13-0766
In this joint disciplinary proceeding, CSEA represented two Mental
Health Therapy Aides ("MHTA") accused of abusing a resident by
pulling her out of bed and dragging the patient by her arms across
the floor, against the patient's will. One of the Grievants was also
charged with speaking to the patient in a hostile and derogatory
manner during this alleged incident. The State sought termination of
both Grievants, one of which worked as a MHTA for over 34 years
and the other for approximately 12 years. At the close of the hearing,
CSEA's motion to dismiss the charge relating to the allegation that
the Grievants pulled the resident from her bed was granted as the
State failed to present sufficient proof of such accusation. In her
written decision, the Arbitrator found the State failed to sustain its
burden of proof that it had just cause for suspending and terminating
both Grievants. In doing so, the Grievants' testimony was found to
be credible where they explained that such transfer from the floor
9
to the wheelchair was routinely performed. The fact that the State's
eyewitnesses were all relatively new employees compared to the
Grievants, also demonstrated that they could have had concerns about
the transfer while the Grievants could have still acted appropriately.
Furthermore, it was held that the actions of the Charge Nurse, who
also witnessed the transfer, corroborated the Grievants' testimony that
this was a routine move as she did not intervene or immediately make
a report of this incident. The Grievants were not only restored to their
previous positions, but were also awarded full back pay and benefits.
NYS OMH (Hutchings Psychiatric Center)
(Arbitrator Stein)
Matter No. 13-0764
This Article 33 disciplinary proceeding involved the proposed
termination of the Grievant, a Mental Health Therapy Aide with 12
years of service, for stating to a resident "Your mother is a homeless
bitch." She was also charged with using an inappropriate restraining
technique and failing to re-direct a resident in a crisis situation. The
Agency argued that the resident's statement accusing the Grievant
of referring to his mother as a "homeless bitch" was an "excited
utterance" or "spontaneous declaration" and should be admissible as
an exception to hearsay evidence. In finding that the statement was
not admissible, it was held that the Agency did not offer any evidence
why it could not produce the resident to testify and the resident's
statement was not reliable. The Agency cannot merely avoid
subjecting a significant witness to cross-examination rather, it must
present evidence as to why such witness was not available. Also, the
mental health of the resident raised serious questions regarding his
credibility and whether he could have formed the belief from outside
influences that Grievant made such a statement about his mother. The
Arbitrator also dismissed the remaining charges indicating that the
Grievant, who customarily worked the adult ward, was not properly
trained on the use of certain restraining techniques on children. The
Grievant was not only awarded full back pay and benefits, but also
there was no evidence supporting probable cause for her suspension
where the underlying investigatory report did not identify specific
acts of misconduct and referenced previous prior alleged instances of
abuse.
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NYS OCFS (Brookwood Secure Center)
(Arbitrator Siegel)
Matter No. 13-1368
The Grievant, a Youth Development Aide with 15 years at
Brookwood, was charged with various allegations including punching
a resident four times in the head and acting aggressively towards the
same resident. Finding that the video of the incident depicted "the
Grievant thrusting his fist four times toward [the resident's] head," the
Arbitrator sustained the most serious charges, upheld the penalty of
termination and found probable cause to suspend. Furthermore, the
resident sustained injuries to his head and face, including swelling to
the side of his eye. The Arbitrator described the Grievant's behavior
as requiring the most serious disciplinary penalty as he completely
deviated from any proper training or appropriate procedure.
NYS OPWDD (Central NY DDSO)
(Arbitrator Deinhardt)
Matter No. 13-0178
This disciplinary proceeding charged the Grievant, a Direct Support
Assistant with over 14 years of experience in the position, with
grabbing a resident by the throat and pushing his head back, while
stating that she would choke the resident to death. The Grievant had
no prior disciplines and an otherwise excellent work record. After
the conclusion of the State's case at the hearing, the Grievant was
restored to the payroll with back pay as the State failed to present
any evidence as to why it suspended the Grievant. In addition,
the Grievant was found not guilty of all charges because the State
mistakenly relied on hearsay evidence to prove its charges, whereas
the Grievant's testimony was forthright, consistent and credible. The
Grievant was awarded all lost benefits and restored to her position.
Local Disciplinaries:
Town of North Greenbush
(Arbitrator Cassidy)
Matter No. 13-1404
This proceeding involved the discipline ofthe Grievant, an 18-year
employee who worked as a Highway Department Laborer. The
11
Grievant accepted responsibility and admitted misconduct when he
stole a cell phone from a resident's mailbox after he was directed to
place flyers in residents' mailboxes alerting them that the Town would
be paving in the area. The Town sought a penalty of termination
noting that all trust was irreconcilably lost in the Grievant because
he not only stole the cell phone, but also repeatedly lied about doing
so during the Town's investigation of the matter. The Union urged
for leniency because of the Grievant's contriteness, his otherwise
unblemished record, his age, his health, his work habits, his learning
disability and his sincerity in understanding the egregious nature of
his misconduct. While recognizing the arbitral authority supporting
discharge for theft, regardless of the personal characteristics of the
offender, the Arbitrator found that a penalty of termination would
be "substantial and life altering" and would most likely prevent
him from gaining any meaningful employment in the near future.
Therefore, the Grievant was suspended without pay or benefits for
one year and, upon his return to work, the Grievant was ordered to be
placed on a one-year probationary period during which time he shall
not have access to the contractual grievance provision for discipline.
County of Cortland
(Arbitrator Zonderman)
Matter No. 13-0436
At the time the underlying charges were brought, the Grievant was
a three-year employee of the County Jail where he worked as a
Corrections Officer. The charges sought termination of the Grievant
for alleged physical abuse of an inmate where the inmate claimed
bruising to his upper arm and accused the Grievant of grabbing
his neck during a cell inspection. The Grievant was also charged
with failing to follow proper procedure for documenting such an
alleged incident and for destroying reports relating to the alleged
incident. In failing to give credence to the inmate, the Arbitrator
noted critical inconsistencies with the inmate's prior sworn testimony
at the Grievant's criminal trial for related charges and the fact that
the inmate had a number of criminal convictions, while the Grievant
had a stable home with a wife and children with no prior incidents
or disciplinary charges. In finding the Grievant not guilty of
inappropriate force, it was found that the inmate did not seek medical
attention, did not claim injury or even speak out to other officers seen
by him that evening. The Arbitrator emphasized that searching cells
12
is a duty of a Corrections Officer and that if an inmate attempts to
block or prevent a Corrections Officer from entering his cell, the act
of moving an inmate aside or slowly moving him backwards is not
excessive or unauthorized force. Rather than a penalty of termination,
the Arbitrator imposed a written reprimand for the Grievant's failure
to properly document such events and ordered the Grievant back to
work with full back pay and benefits.
County of Schenectady
(Arbitrator Gelernter)
Matter No. 13-0737
Prior to the hearing in this disciplinary matter, the Union filed a
motion to dismiss the disciplinary proceeding arguing that the
County failed to provide adequate notice of the date, details or even
the nature of the improper behavior that the County used as the
basis for its discharge of the Grievant. In this interim decision, the
Arbitrator found that the County did not provide the required notice
and specificity pursuant to the disciplinary process, when it merely
sent a letter to the Grievant indicating that her "employment with
Schenectady County as a Clerical Aide is terminated effective July
7, 2012." Although the Grievant received a counseling memo and a
written warning prior to her termination advising her that absenteeism
and tardiness was not permissible, the County never provided the
Grievant with any information about the misconduct that actually
resulted in her termination. Rather than dismissing the charges, the
Arbitrator ordered the County to furnish the required charges and
specifications by a certain date. In the event that the County failed
to provide such details by the deadline, the Arbitrator noted that the
charges would be dismissed and the Grievant would be restored to her
prior position, with back pay and all other lost benefits.
County of Monroe
(Arbitrator Foster)
Matter No. 13-1298
This disciplinary proceeding related to the proposed termination of
the Grievant after he failed to report to work for five weeks due to his
arrest and incarceration for petit larceny. A few days after his arrest
and incarceration, Grievant's brother-in-law called the County and
reported that the Grievant would not be in "until further notice." For
13
the next five weeks there was no evidence that anyone at the County
knew where the Grievant was or why he had stopped coming to work.
When the Grievant was released from incarceration, he discovered
that he had been terminated for failing to show up to work. During
his 10 years of employment with the County, the Grievant had timeand-attendance infractions and a recent three-day suspension for
sleeping on the job. He also had a history of substance abuse. In
upholding the termination, it was held that the Grievant had many
ways to communicate with his supervisors and inform them of his
situation when he was arrested and to ask them to be excused from
coming to work until he was released from jail. By failing to do so,
the County had just and sufficient cause to terminate his employment.
Clinton County Sheriff's Department
(Hearing Officer Riccio)
Matter No. 13-1444
This Section 75 disciplinary case involved various allegations that a
13-year Corrections Officer committed misconduct and incompetence
when he misrepresented the nature of an incident involving an inmate
in order to obtain Workers' Compensation benefits. The alleged
injuries occurred when the Respondent was transporting an inmate
from the jail to a court hearing. As part of the record, the County
presented evidence that the Respondent engaged in physical activities,
including hunting, rafting and performing yard work, which was
inconsistent with the restrictions that the medical providers placed
on him to remedy his claims of injury to his shoulder and back,
and that the Respondent provided differing accounts of his injuries
to various treatment providers and entities, including the Workers'
Compensation Board. This proof was found sufficient to sustain the
charges and such actions were found to be so egregious in character
that the penalty of termination was warranted as the Sheriffhad lost
all trust in the Respondent.
Arlington Central School District
(Arbitrator Cole)
Matter No. 13-1271
The Grievant, a 14-year grounds keeper, challenged the District's
proposal that just cause existed for his termination where it was
alleged that the Grievant received, stole and/or took possession of
14
a delivery of food baskets which were intended for the District's
Maintenance Department. According to the Grievant, the evidence
did not demonstrate any intent to steal the baskets as the gift baskets
never left District grounds and, in fact, the Grievant never took
any items from the baskets for himself. The Grievant presented
testimony that between his work responsibilities and having a bad
day, he was not focused on the baskets during the day and it was his
intention to deliver the goods from the baskets to his co-workers at
the end of day. The proposed penalty of termination, however, was
found to be appropriate. The Arbitrator noted that not only was the
Grievant previously disciplined for misconduct, but his behaviors also
supported an intent to steal - where he initially denied receiving the
baskets when questioned by his supervisor and he shared the contents
of the baskets with one co-worker but no one else. The Arbitrator
went to great lengths to explain that theft is a cardinal offense, which
unlike a lack of skills or poor work performance, reflects a profound
character flaw that cannot be effectively rectified by progressive
discipline.
Monroe Community College
(Arbitrator Foster)
Matter No. 13-0886
In this disciplinary matter, the Employer sought termination of the
Grievant alleging sexual harassment when
~
he sent sexually explicit pictures of himself
9
to a co-worker. The Employer alleged that ~
j
such actions were the final step in a long
~·~
series of previous disciplines against the
~~
Grievant relating to various attendance
~~.duaV
infractions. While the Grievant did not
dispute that he sent such communications to the co-worker, the
Arbitrator found that the Employer did not have just and sufficient
cause for discharge. According to the Arbitrator, the Employer never
provided an evidentiary basis for alleging that such communications
were unacceptable where the Grievant testified that the co-worker
had in fact initiated communications of this nature with him and his
relationship with the complainant was consensual. Moreover, the coworker did not testify at the hearing, and the Employer's only proof
that such conduct was unacceptable was from the telephone report
of the co-worker's complaint suggesting that the Grievant sent such
F
15
pictures to stalk or harass. Therefore, the Grievant was reinstated
with full back pay and benefits.
Town of Camillus
(Arbitrator Kowalski)
Matter No. 13-0919
The Town sought termination of the Grievant, a six-year employee
with no prior discipline history, alleging that on a number of
occasions in 2012 and 2013, he exposed himself in the workplace to
fellow co-workers. The Grievant admitted to exposing himself on
one occasion during a retirement party, claiming it was simply an
act of horseplay and done with no intent to harass fellow employees.
The Arbitrator, however, credited the testimony of two co-workers
that the Grievant exposed himself on various occasions rather than
just one. Citing to his positive work history and the fact that the
Grievant should be afforded an opportunity to correct his behavior,
the Arbitrator did not impose termination but found such behavior
as severe, warranting a harsh penalty. As a result, the Grievant was
reinstated with no back pay and a last chance condition was imposed
ending in immediate termination for any further misconduct of any
substance.
Town of Niskayuna
(Arbitrator Selchick)
Matter No. 14-0018
Here, the Grievant sought review of a Notice of Discipline seeking
a three-day suspension for misconduct relating to two incidents
involving his alleged failure to follow his supervisor's instructions.
In finding the Grievant guilty of the charges and sustaining the
penalty, the Arbitrator noted that although he could not make a
determination of whether the Grievant properly cleaned the Water
and Sewer Garage for an upcoming fire inspection, it was clear that
the Town established the charge alleging that the Grievant failed
to remove equipment blocking a doorway. Furthermore, while
the Arbitrator credited the Grievant's testimony concerning his
supervisor's loss of patience when the Grievant asked for guidance
relating to the second task of removing a manhole cover, such
finding did not constitute a defense to Grievant's failure to conduct
the work in a timely manner that was consistent with Grievant's
16
experience. The penalty was deemed appropriate considering various
documented instances occurring just months before these at-issue
events, including a counseling, partial one-day suspension and written
warning.
Erie County Sheriff's Office
(Arbitrator Cugalj)
Matter No. 10-1176
The Grievant, a Corrections Officer
with 29 years of service, was charged
with sleeping while he was on-duty
and responsible for 30 inmates. The County proposed a 14-day
suspension on the Grievant, who had no previous disciplinary record.
Admitting that he was dozing at his desk, the Grievant explained that
he was prescribed strong medications due to a long standing neck
injury which produced side effects of drowsiness. He also testified
that such side effects were most profound shortly after taking his
medications, which is during the first shift and not his normal shift
assignment. On the day in question, however, the Grievant was
assigned an overtime first shift assignment rendering the side effects
relatively intense. After finding the Grievant dozing off, the County
asked the Grievant to remain and work for the second shift that
day, thereby providing confidence in the Grievant's performance.
Considering these mitigating circumstances, the Arbitrator found the
proposed 14-day suspension as excessive and reduced the penalty to a
seven-day suspension.
CONTRACT GRIEVANCES:
Town of Clarkstown
(Arbitrator Edelman)
Matter No. 13-1009
In this grievance, CSEA claimed that the Town failed to pay
the Grievant, a Dispatcher, for a regular day's pay when he was
subpoenaed to testify in a court proceeding relating to his off-duty
position as a police officer for another municipality. The collective
bargaining agreement contained two provisions relating to court
attendance. One provision allowed a bargaining unit member
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to take personal leave for attendance in court, while the second
provision permitted a leave of absence with pay for attending a
court proceeding pursuant to a subpoena. The Union argued that the
purpose of the provisions was to differentiate whether the attendance
was voluntary or compelled, not whose interest was being served by
the Grievant's attendance as alleged by the Town. In sustaining the
grievance, the Arbitrator found that the only logical conclusion to
allow both provisions to retain force and effect was to find that the
provision disallowing compensation covered voluntary attendance
in court, while the other provision allowing compensation mandated
attendance via subpoena. It was further noted that the holding
did not pertain to "friendly subpoenas." Therefore, the Grievant
was reimbursed one day's pay from the Town for his subpoenaed
testimony involving his off-duty position as a police officer.
Madison County
(Arbitrator LaManna)
Matter No. 13-0297
At issue in this contract grievance was whether the
County violated the parties' CBA when it denied
Grievant's claim for retiree health insurance coverage.
The Grievant retired from the State of New York in
1987 under the New York State and Local Retirement
System and subsequently received a retirement allowance disability
benefit. He was hired by the County in 1994 and declined to rejoin the Retirement System. In late 2012, the Grievant submitted
a letter to the County indicating his intent to "retire" in early 2013.
The County, however, interpreted his departure as a resignation and
instead offered him COBRA health insurance benefits. Interpreting
the provision of the CBA relating to retiree health insurance which
states that the Grievant needed to retire "directly into or under the
New York State and Local Retirement System," the Arbitrator found
that the Grievant could not retire "directly" when he left the employ
of the County because he had already retired in 1987. Furthermore,
the Arbitrator found the Grievant's claim that he could not re-join
the Retirement System once he received retirement benefits was only
partially true as his disability benefits would have been adversely
affected if he had re-joined. Therefore, the Grievant's actions
were construed as an attempt to wrangle the contract for his own
betterment and the grievance was denied.
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Middle Country School District
(Arbitrator Maier)
Matter No. 13-1227
CSEA filed this contract grievance alleging the District violated the
CBA when it denied bereavement leave to two employees during
the summer months of July and August. There was no dispute that
employees who work during the regular school year, from September
to June, are entitled to bereavement leave under the CBA. Noting that
the bereavement clause of the CBA does not state specifically whether
it applies to those employees who work during July and August, the
Arbitrator turned to the context of the other clauses in the CBA and
the practice between the parties regarding leave days during that time
period. The bereavement clause was found inapplicable to summer
employees and the grievance was denied because the provisions of
the CBA related to and referenced employees who work during the
regular school year, whereas work performed during the summer
months was referred to as "out of contract" work. In addition, the
testimony revealed that no employee who worked during the two
summer months had ever received bereavement leave, and the only
employees who had received such paid leave were those who worked
during the period September through June.
Cohoes City School District
(Arbitrator Lewandowski)
Matter No. 13-0950
This contract grievance was filed by CSEA after the District
unilaterally transferred a Senior Typist in one of the District's
elementary schools to a vacant Senior Typist position in the High
School without posting and proceeding through the recruitment
process for such vacant position, as set forth under the CBA. Looking
at the CBA, the Arbitrator denied the grievance as the management
rights clause did not limit the District's right to reassign employees
and this transfer was seen as a reassignment. According to the
Arbitrator, a reassignment occurred because the Senior Typist position
in the Elementary School, where the Grievant initially worked,
was reclassified to a Typist position. The District then reassigned
the Grievant to the only open Senior Typist position in the High
School and properly posted the newly created Typist position in the
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Elementary School. The Arbitrator concluded that the CBA would
have been violated if the District filled the Senior Typist position in
the High School with anyone other than an employee whose Senior
Typist position was in the process of being eliminated.
NYS Canal Corporation
(Arbitrator Miller)
Matter No. 13-0573
CSEA grieved the decision by the Corporation which denied the
Grievant out-of-title pay for duties she performed in the stockroom in
the Utica Sections Canal. Grievant worked as a Stores Clerk I and
reported to her immediate supervisor, who held the position of Stores
Clerk 2. Grievant assumed the duties of running the stockroom after
her immediate supervisor became ill and passed away. In arguing that
the Grievant deserved out-of-title pay, CSEA maintained that although
the Grievant was not formally assigned to the duties of Stores Clerk
2, she assumed the duties of the higher job, thus constituting a de
facto assignment. In opposition to CSEA's claim, the Corporation
contended that the two titles performed overlapping duties and the
Grievant was not assigned to a higher position but rather continued
to perform the duties she had been performing before her immediate
supervisor departed from his position. In awarding out-of-title pay to
the Grievant, the Arbitrator found the Grievant's testimony credible
concerning the fact that she only required minimal assistance from
the supervisor of the stockroom and, therefore, held that the Grievant
was the sole manager of the stockroom. The Grievant's supervising
role fulfilled the Corporation's claim that the Stores Clerk 2 position
required supervisory responsibilities.
County of Oswego
(Arbitrator Rabin)
Matter No. 13-0113
CSEA filed this promotional grievance when the Grievant was denied
the appointment of Bridge Crew Supervisor even though he was
more senior than the successful candidate. The contract language
asserted that appointments shall be made on the basis of experience,
training, ability, past performance and seniority and that, when all
factors are equal, seniority will be the determining factor. Noting that
it is almost impossible for a union to prove on its own that the senior
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candidate is at least as good as the junior candidate, the Arbitrator
held that the County carries the burden to at least make the case that
it considered the contract's relevant factors and picked someone
who is better qualified than the senior candidate. In finding that the
County violated the contract, not only did the County not consider
the factors in the contract, but it also failed to have any procedure in
place as it did not: review past performance, evaluate training, review
personnel files, conduct interviews and had no scoring matrix to
evaluate candidates. While the job in question had been completed,
the remedy included, in essence, compensating the Grievant with all
hours that he worked at the rate of pay that would have been applied
to the promotional title.
Village of Dansville
(Arbitrator Gelernter)
Matter No. 13-1414
This contract grievance alleged that the Village violated the terms
of the agreement when it stopped paying Health Reimbursement
Account ("HRA") benefits to retirees in excess of $500. At issue
was whether the contract language required the Village to contribute
additional funds exceeding $500 into the HRA accounts of retirees.
Giving great weight to the past practice and bargaining history of
the parties, the Arbitrator sustained the grievance and held that such
additional funds were to be applied to retirees. It was significant that
the Village paid the additional funds to retirees' accounts for five
years, thereby demonstrating that the Village thought the underlying
provision applied to retirees. Furthermore, recollections concerning
the bargaining history of the at-issue provision established that
retirees were to receive additional compensation into their HRA. The
Arbitrator ordered the Village to: pay all additional
HRA funds in the future; pay all additional HRA
funds that it withheld to retirees during the years
in question; and, pay any out-of-pocket expenses
incurred by these retirees due to the Village's
violation.
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DASNY
(Arbitrator Selchick)
Matter No. 12-1490
This grievance was filed by CSEA after the Grievant, a Construction
Analyst for DASNY, was performing the work of a higher title,
namely a Construction Systems Coordinator. The burden rested
with CSEA to establish that the duties unique to the higher grade
constituted the major portion of the employee's work load. In
describing this issue as "a somewhat complicated factual question,"
the Arbitrator, however, found that all of the Grievant's activities were
related to his position and not to that of the higher title. Furthermore,
the fact that the Grievant's supervisor was not responsible for certain
assignments due to her own inadequacies did not support the claim of
the Grievant that he was performing out-of-title work.
CIVIL SERVICE LAW
SECTION 72:
County of Ulster
(Hearing Officer Hines)
Matter No. 13-1366
This Section 72 proceeding of the Civil Service Law involved
whether the Respondent was unqualified to perform his duties
as a bus driver due to his purported high blood pressure. The
County argued that the Respondent was unfit to work due in part
to an independent medical assessment which demonstrated that
the Respondent sustained accelerated hypertension. The County's
Director of Transportation also testified as to the daily stresses
and responsibilities of the position, including involvement with
passengers, tight schedules and traffic challenges, and qualifications
of a bus driver. In opposition, the Respondent presented evidence
from his treating physician of 15 years who opined that the
Respondent did not exhibit any symptoms of hypertension. In
sustaining the County's decision that the Respondent was unfit for
duty, it was found that the Respondent himself presented medical
documentation to the County verifYing high blood pressure readings
that were so significant as to disqualifY him under NYS regulation
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from driving a bus. Given the fact that the Respondent was barred
under these absolute standards from driving and in the interest of
strong public policy, the County was found to be obligated in making
such a determination, including the decision to immediately suspend
the Respondent from his position.
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