Union Membership Declines (Again!)

On January 18, 2019, the BLS released its annual report on union membership in the United States.
Overall union membership declined .2% to 10.5% of the workforce.
Union membership in the public sector was 33.9% and 6.4% in the private sector.
These numbers vary widely by state and industry and readers would need to review the entire report for more detail.

No matter where one stands on unionization, what is surprising to me is that the BLS, a federal government agency, is continuing to operate during the current federal government partial shutdown.

Court Issues Rare Order Vacating Arbitrator's Decision

Matter of Browne v. N.Y.C. Dep't. of Education, 2018 N.Y. Slip Op. 33131(U) (N.Y.Co.  Dec. 8, 2018), representing the rare case where the court vacated an Arbitrator's decision. In Browne, the Arbitrator found the teacher guilty of inflicting corporal punishment on a student. In vacating the penalty of termination, the Court reasoned:

"An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter oflaw." Matter of Idahosa v Farmingdale State Coll., 97 AD3d 580, 581 (2d Dept 2012). As set forth below, under the circumstances, the Court finds "that the penalty of termination of employment is shockingly disproportionate to petitioner's misconduct." Matter of Brito v Walcott, 115 AD3d at 546. As noted by petitioner, this situation bears a striking similarity to Matter of Principe, where a DOE employee, in his role as dean of discipline in a middle school, was charged with two incidents of corporal punishment and was terminated after a hearing held pursuant to Education Law§ 3020-a. The hearing officer had issued the penalty of termination based on three factors: the seriousness of the behavior, the lack of remorse and the lack of petitioner's credibility. Due to the three factors, the hearing officer found a likelihood that this behavior would continue. The court agreed with the DOE's contentions that there had been no violation of any specific section of article 75 of the CPLR and that there had been a rational evidentiary basis for the hearing officer's findings. However, while acknowledging that the court "does not support corporal punishment," the court found that the hearing officer failed to "realize that these were not in any way premeditated acts." Matter of Principe v New York City Dept. of Educ., 2010 NY Misc LEXIS 7050 at *9. The court continued that the circumstances should have been taken into consideration, namely; difficult children with records of violent behavior, difficult situations and his job responsibility of maintaining order. Next, the court addressed the "difficult situation," of expecting the petitioner to "show remorse while still denying that he had done anything wrong." Id. at * 10. Lastly, the court noted that "an individual should have a right to give his own recount." Id. Among other things, the court also stated that petitioner had an unblemished record and had never been warned or disciplined about aggressive behavior. Finally, the court did not agree with the hearing officer that due to the three factors, the behavior is likely to be repeated, especially after imposing a "lesser penalty such as suspension with perhaps an anger management course .... 

                                                 *        *        *
With respect to fashioning the penalty, Burrell specifically stated that petitioner's "denial precludes remorse, and therefore causes me to question whether remedial steps such as a fine or suspension and anger management training would be effective." Award at 33. Under the circumstances, it was unreasonable for Burrell to implement the harshest penalty of termination based on petitioner's lack of remorse and his denial of any wrongdoing. Petitioner consistently denied striking Student A and reiterated that he had an obligation to protect his classroom. Burrell then describes petitioner as an honest person and states that petitioner may not actually even remember striking Student A because it was in the heat of the moment. By expressly indicating that petitioner's denial precludes remorse, the Court finds that Burrell "placed petitioner in a very difficult situation, when he expected petitioner to show remorse," given that petitioner denied any wrong doing. Matter of Principe v New York City Dept. of Educ., 94 AD3d at 434 (internal quotation marks omitted). Moreover, while Burrell ultimately found that petitioner did strike Student A, petitioner should not be subjected to a harsher penalty because he provided his version of the incident. In light of petitioner's unblemished record, lack of disciplinary history and the underlying circumstances, the penalty of termination is excessive and shocking. Furthermore, Burrell found that Student A did not experience any pain to his head or face.

Mitchell Rubinstein

Important Education Law Section 3020-a Procedural Decision Concerning Time Limits

The First Department recently issued a short, but important, Education Law Section 3020-a procedural decision. Education Law Section 3020-a requires that the hearing be completed within 125 days and that a decision be rendered within 30 days of the final hearing. But, what if these time requirements are not met? In Martin v. Department of Education, ___A.D. 3d___(1st Dep't. Dec. 27, 2018), the First Department held that the failure to comply with these statutory requirements is not jurisdictional in the absence of prejudice. However, the court also held that the failure to commence an appeal within 10 days is jurisdictional.  As the court explained:

             "The petition is untimely, since plaintiff failed to commence this CPLR article 75 proceeding within 10 days of her receipt of the Hearing Officer's decision (Education Law § 3020-a[5][a]).

           Although the hearing was not completed within 125 days (Education Law § 3020-a[3][c][vii]) and the arbitration award was not issued within 30 days of the last day of the hearing (Education Law § 3020-a[4][a]), petitioner has not shown that she suffered prejudice as a result (see Matter of Leon v Department of Educ. of the City of N.Y., 115 AD3d 435, 436 [1st Dept 2014], lv denied 24 NY3d 903 [2014]; Scollar v Cece, 28 AD3d 317 [1st Dept 2006])."

       So, if the plaintiff teacher fails to file her appeal within 10 days, she is procedurally barred and the Department does not have to show prejudice. But, the fact that the decision was not timely issued is not a defense unless prejudice is shown. This decision makes no sense. Clarification of this issue is needed from the NYS Court of Appeals.

Mitchell Rubinstein