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Agency?s initial decision sustaining an employee?s out-of-title work grievance overturned by the Governor?s Office Of Employee Relations

Agency?s initial decision sustaining an employee?s out-of-title work grievance overturned by the Governor?s Office Of Employee Relations
Matter of Cushing v Governor's Off. of Empl. Relations, 58 AD3d 1095

The Governor's Office of Employee Relations denied Judy M. Cushing's out-of-title work grievance that alleged that she had been required to perform out-of-title work on 34 occasions between January 2006 and July 2006.

The decision indicates that at various times in 2006 Cushing was directed by her employer, the Office of Mental Hygiene, [OMH] to fill in for her supervisor when he was absent. Cushing's job is classified as a "Nurse 2 (Psychiatric)" (N2), Salary Grade 16, while her supervisor's job is classified as a "Nurse Administrator I" (NA1), Salary Grade 20.

Although OMH initially sustained the grievance, its decision was ultimately overturned by Governor's Office of Employee Relations (GOER) and the grievance was denied.*

Cushing and the president of the union representing her job title filed an Article 78 action in an effort to annul GOER's determination.

The Appellate Division said that GOER?s review of the duties described in the N2 job classification standard noted that in the event a NA1 is not on duty, a N2 is "capable of assigning duties to staff in order to provide adequate coverage; making clinical rounds on wards to assess nursing care needs; evaluating work performance of subordinates; communicating daily nursing needs to appropriate supervisors; accounting for the issuance of controlled drugs and narcotics; and conducting performance evaluations."

After taking the foregoing considerations into account, GOER concluded that Cushing was not required to perform out-of-title work.

As judicial review of GOER's determination in this context is limited to whether it is arbitrary, capricious or without any rational, the court concluded that in ?the absence of compelling evidence establishing that [Cushing] performed distinctive aspects of the NA1 job title that differentiated it from the N2 job title,? there was no basis for disturbing GOER's determination.

* The decision does not indicate the means by which GOER attained jurisdiction over the grievance.

NYCRR Comments: In an earlier case involving a decision by the Office of Court Administration to ?ignored a Step 1 grievance determination" (by one of its administrators), the Court of Claims found that only the employee or the Union could appeal a grievance determination "apparently (because) it was assumed in the Contract that the State would follow any Step 1, 2 or 3 decision since these decisions would be made, respectively, by the State's own supervisors, officers or personnel agency" [Taylor v State of New York, 1982].

The Court of Claims noted there was no reason or basis for the employees to appeal in this instance as they had won their grievance at Step 1 and obtained a totally satisfactory decision from the employees? prospective.

A different result obtained in Weed v Orange County, 209 A.D.2d 628, decided with 209 A.D.2d 627, motion for leave to appeal denied, 85 N.Y.2d 810.

In Weed, the Orange County Commissioner of Personnel's refused to implement a grievance award made a supervisor in the employee's favor "as a first step determination." The Appellate Division ruled that under the controlling collective bargaining agreement "the Commissioner of Personnel is given sole discretion in granting paid leave." Accordingly, ruled the court, the County was not required to comply with the determination of Weed's supervisor, who initially sustained Weed?s grievance.

Full post as published by New York Public Personnel Law on March 04, 2010 (boomark / email).