Decisions and Cases

Labor and employment lawyers at Greenberg Burzichelli Greenberg P.C. have represented employees and unions in matters of extreme importance, and have secured victories by settlement, in courts, and with administrative agencies. Below are a representative sampling of some of our most recent cases and decisions.

2012

2011

2010

2009


Decisions

Arbitrator Grants Grievance and Orders the Port Authority to Restore and Reimburse Contractual EZ Pass Benefits to Employees and Retirees (March 2012)

GBG lawyers successfully challenged the Port Authority’s unilateral discontinuation of EZ Pass Benefits as a violation of electrician union’s collective bargaining agreement. Effective January 1, 2011, the Port Authority purported to discontinue free tunnel and bridge toll benefit and free airport parking for the union’s employees/retirees. Through the efforts of GBG, the union challenged the action through the contractual grievance procedure, ultimately proceeding to arbitration. By an Opinion and Award dated March 20, 2012, the Arbitrator sustained the grievance, finding that the benefits were contractually guaranteed to employees in retirement. The Arbitrator ordered the Port Authority to restore the EZ Pass Benefits and to make retirees whole for any expenses they incurred as a result of the unlawful discontinuance of such bargained for benefits.

GBG Represents More Than 6,500 Court Employees Challenging Unilateral Changes in Health Benefits By New York State Employers (February 2012)

GBG recently filed a federal lawsuit on behalf of eight labor unions representing court employees throughout Long Island and New York City to challenge actions by the State of New York and the Unified Court System to unilaterally impose significant changes to employee health benefits, including the retroactive increase of employee contribution rates. The lawsuit alleges the health changes violate the U.S. Constitution’s Contracts and Due Process Clauses, the New York State Constitution, as well as State Civil Service Law and each of the union’s collectively bargained employment contracts.

State Supreme Court Justice Orders Reclassification of State Workers to Higher Ranks With Increased Compensation (January 2012)

A State Supreme Court Justice granted GBG’s petition on behalf of Nassau County’s highest ranking court security officers after the New York State Unified Court System (“UCS”) denies their request for reclassification. In June 2009, UCS sought to alter the salary grade structure of certain New York City court personnel without also reclassifying Nassau County court personnel performing the same duties and assigned identical responsibilities. The Court rejected the UCS argument that there exist differences in chain of command reporting structure, finding that both sets of employees share the same level of decisional authority.

Manhattan Federal Court Grants GBG’s Motion to Dismiss and Denies Complaint Against City Union in Action Alleging Breach of Duty of Fair Representation and Breach of Contract (September 2011)

GBG was victorious in its challenge to a federal lawsuit alleging breach of the duty of fair representation and breach of contract against District Council 37, New York City’s largest public employee union. Judge Kimba Wood, of the U.S. District Court for the Southern District of New York, granted GBG’s motion to dismiss the complaint in its entirety and denied plaintiff’s request to file a third amended complaint, concluding doing so would be futile. The underlying facts involve a union member dissatisfied with a settlement of a grievance, notably in his favor, and the failure of the union to grieve additional actions plaintiff alleged violated the contract. The Court concluded that even when reading the plaintiff’s complaint in the light most favorable to him and drawing all reasonable inferences in his favor, he still failed to suggest any facts which could support a finding that the Union’s actions were irrational, unlawful or deceitful as required by the applicable standard. Further, the Court held that the complaint failed to state a claim for breach of the collective bargaining agreement because Plaintiff lacked standing to enforce the agreement. The plaintiff failed to point to any language in the collective bargaining agreement which showed a specific intent to create enforceable obligations against the Union by individual employees.

Federal Judge Grants GBG’s Motion to Dismiss a Federal Age Discrimination Claim Against Nassau County Labor Union (September 2011)

U.S. District Court Judge Denis Hurley granted GBG’s motion to dismiss a federal complaint against a Nassau County police union that alleged age discrimination and breach of the union’s fiduciary responsibility. In 2009, active and retired members of the Nassau County Police Department initiated a federal lawsuit against the County of Nassau and its police unions, alleging that a cap on termination pay sought by the County and imposed by an interest arbitration panel in 2007 “force[d] older employees into retirement.” Although the cap was opposed by the union at arbitration, plaintiffs alleged that its failure to prevent the arbitrator’s decision and the County’s implementation of the ordered cap was a breach of its obligation to act in the best interest of its members. The Court granted the motion to dismiss the entire complaint and denied the motion by plaintiffs to be certified as a class. Notably, the Court concluded that the older plaintiffs were actually in a better position than their younger counterparts since they were able to choose to retire before the cap was imposed.

GBG Wins Civil Service Law Section 76 Appeal Before the NYC Civil Service Commission Reversing the Employer’s Termination of Employee and Returning the Union Member to Work (August 2011)

Following a disciplinary hearing pursuant to Section 75, in which an employee was terminated for possession of a controlled substance, GBG sought review before the New York City Civil Service Commission on the employee’s behalf. The parties submitted written statements and presented oral argument before the Commission. GBG argued that there were significant mitigating factors which supported a penalty short of termination. The Commission agreed, concluding that the penalty of termination was excessive and disproportionate where the misconduct was an isolated incident in a long and exemplary record, with no prior discipline, and where the employee took steps to address his drug use problem. The Commission modified the employer’s termination of the employee and ordered he be reinstated.

Denying Employees With Military Service Time Off on July Fourth Was Arbitrary, Nassau Court Finds (June 2011)

Representing employees who are veterans of the armed forces, GBG brought suit against a municipality who had previously denied those veterans paid time off on July Fourth as required by law. The Court concluded that the employer’s disparate treatment of similarly situated employees for the purpose of granting or denying excused leave on the Fourth of July without loss or reduction of vacation or holiday privilege was arbitrary. The Court further concluded that the employer’s disparate treatment was prohibited by New York State Military Law Section 249 which protects both state reserve corps members and United State military reserve members who served at a time when the U.S. was not at war. The Court remanded the matter to the parties for correction of days which were deducted by the employer for July 4, 2010, even if the employee had pre-picked the date as vacation or other personal time off.

GBG Files Federal Lawsuit Against Nassau Interim Finance Authority and County of Nassau Alleging Wage Freeze of Police Officers Violates U.S. Constitution and New York State Law (April 2011)

GBG lawyers are representing more than 2,400 police officers, detectives, and supervisors in three Nassau County police unions – the Police Benevolent Association, the Detectives Association Inc., and the Superior Officers Association – in a federal lawsuit aimed at stopping the County and the Nassau Interim Finance Authority (NIFA) from imposing a freeze in wages, salary steps, and other benefits. At the County’s request, NIFA, a state finance oversight panel, suspended all salary increases, annual “step” increases, and hikes in other wage benefits such as longevity effective April 1, 2011. The lawsuit, which requests declaratory and injunctive relief, alleges these actions violate the contracts clause of the U.S. Constitution as well as state law.

New York City Board of Collective Bargaining Dismisses Charge Against Union, Concluding Union Met its Duty of Fair Representation (January 2011)

GBG successfully defended a labor union in a duty of fair representation claim brought against it. The claim alleged the union had irresponsibly and unreasonably handled a contract grievance. The New York City Office of Collective Bargaining was convinced by GBG’s arguments in favor of dismissal, concluding that even if all of the facts alleged were true, such facts did not rise to the level of a breach of the union’s duty. The Board found that a bargaining representative’s duty is limited to evenhanded treatment of the members of the unit. Here, the charging party failed to establish that the union had represented other employees in a different manner. As such, the charge against the union was dismissed in its entirety.

GBG Files Amicus Brief On Behalf of Police Union to Prevent Public Disclosure of Internal Affairs Report (December 2010)

When police officers’ individual property and due process rights would be negatively affected by the public disclosure of an internal affairs report, GBG lawyers were retained to seek amicus curiae status for a police union in opposition to such disclosure. Certain police officers were named as defendants in a civil action. None of those officers have had disciplinary charges, if any, resolved and there was no formal finding that any officer violated any rule, regulation or procedure. GBG argued that permitting public disclosure of the internal affairs report would unfairly prejudice those officers’ due process rights. Magistrate Judge A. Kathleen Tomlinson of the U.S. District Court for the Eastern District of New York granted GBG’s application to appear and ultimately ruled against public disclosure, protecting the statutory and contractual rights of public employees.

New York Judge Issues Permanent Injunction Against New York City Health and Hospitals Corporation, Preventing Massive Layoffs of Local 3 City Electricians (November 2010)

State Supreme Court Justice Alice Schlesinger reversed a scheduled citywide layoff after finding that the New York City Health and Hospitals Corporation did not utilize a complete and well-considered methodology to reach a rational decision designed to guarantee that the City hospitals would be safely maintained as required by law. Her decision also acknowledged that Local 3 Electricians at these facilities, who were represented by GBG lawyers, serve the vital function of protecting the health and safety of patients and staff from hazards such as blackouts and fires, and ensuring the continued operation of machines that prevent or contain the spread of contagious infections.

GBG Pursues Action Against County of Nassau For Denying Employees With Military Service Time Off on July Fourth in Compliance With State Law (November 2010)

In what appears to be a first ever challenge of its kind under Section 249 of the New York State Military Law, GBG’s attorneys are representing employees who are veterans of the armed forces and who were denied paid time off on July Fourth as required by the law. Section 249 entitles certain honorably discharged former National Guard members, former naval militia members, and former reservists to a day off with pay on July Fourth. That day off is also to be without loss or reduction of vacation or holiday privileges. The lawsuit filed in State Supreme Court alleges that the County of Nassau arbitrarily and in violation of the law granted certain eligible employees time off for July Fourth but denied other similarly situated eligible employees the same statutory right.

Administrative Law Judge at the New York State Public Employment Relations Board Rules To Protect Work Performed By Union in Transfer of Unit Work Case (August 2010)

A decision by Administrative Law Judge Philip Maier of the State’s Public Employment Relations Board upheld the right of Deputy Sheriffs in Suffolk County to continue patrolling the highways there, dismissing a challenge by two other police organizations who claim those job functions had been exclusively their work. GBG attorneys successfully defended the work of Suffolk County Deputy Sheriffs PBA members, protecting their job functions and ensuring that whatever work those members perform is no less than the work performed prior to the transfer alleged by the charging parties.

GBG Files Federal Lawsuit Against City of White Plains to Protect Post-Retirement Health Benefits of Police Officers (July 2010)

When the City of White Plains enacted an ordinance to unilaterally require police officers to pay a portion of their post-retirement health insurance, GBG filed a federal lawsuit to protect those affected union members’ interests. The action alleges violations of the U.S. Constitution and the White Plains police union’s collective bargaining agreement. During the pendency of the lawsuit, no retired member has been required to contribute to his or her health insurance premium. The action of the City is but one example of municipalities increasingly looking to cut costs wherever they can no matter the harm to public employees or whether it violates protected rights. Cuts to health insurance, including post-retirement health insurance, are no exception.

Trial Examiner Refuses To Terminate a New York City Housing Authority Employee in Drug Possession Discipline (May 2010)

Following a disciplinary hearing pursuant to Section 75 of the Civil Service Law in which the New York City Housing Authority sought termination of an employee charged with possession of controlled substances and failure to report his arrest, the Trial Examiner concluded that termination was inappropriate. During the hearing GBG presented significant mitigating factors including the employee’s length of service, lack of disciplinary record, work performance, and willingness to receive employee assistance. Based upon these mitigating factors and others the Trial Examiner recommended a less severe penalty of suspension. Thereafter, the parties entered into a stipulation of settlement to ensure adoption of the penalty by the employer and continued employment of the employee.

New York City Comptroller Affirms OATH Decision in Consent Determination Awarding 6 Years of Backpay and Substantial Benefits to Local 1320 Sewage Treatment Workers (November 2009)

GBG obtained a favorable determination at the New York City Office of Administrative Trials and Hearings (OATH) on behalf of the City of New York’s sewage treatment workers (Local 1320) in a Labor Law 220 proceeding. This complex, first-ever litigated consent determination for Local 1320 presented unique facts and challenges including finding a comparable private sector match. The City Comptroller affirmed the OATH decision and awarded Local 1320 members back pay and substantial benefits for a six year period. The Comptroller’s award resulted in significant increases to the union members= hourly rates.

New York Judge Finds Town of Southampton Violated Civil Service Law and New York State Constitution When Its Police Department Appointed Officers To Supervisory Positions Known as “Duty Officers” (October 2009)

GBG filed a lawsuit alleging that the Town of Southampton and its Police Department violated Civil Service Law and the New York State Constitution in their assignments of police officers to perform duties out of rank when those officers were not on the active, eligible civil service list and when such assignments lasted for more than three months in duration. State Supreme Court Justice Melvyn Tanenbaum found GBG’s arguments on behalf of the Patrolman’s Benevolent Association of Southampton Town to be compelling and ordered that all police officers appointed “duty officers” during a 22 month period, from February 2006 through November 2007, be fully compensated at the same wage rate and with the identical benefits granted a sergeant.

GBG Defends Union Against Alleged Violations of Age Discrimination in Employment Act (October 2009)

GBG lawyers defend union named as a defendant in action alleging age discrimination. The alleged discriminatory act, the implementation of a cap in the termination pay employees could receive, was opposed by the union but was awarded by an arbitrator at the request of the public employer. GBG lawyers seek dismissal of the action against the union while simultaneously securing the contractual and civil rights of the union’s members.