STATE OF NEW YORK COURT OF CLAIMS

JEFFREY MALKAN AFFIDAVIT IN OPPOSITION TO

Claimant DEFENDANTS MOTION TO DISMISS

STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT BUFFALO) Claim No 117676

Defendant Hon Jeremiah 1 Moriarity III

STATE OF NEW YORK ss

COUNTY OF ALBANY

TARA SINGER-BLUMBERG being duly sworn deposes and says

1 I am a Labor Relations Specialist employed by NYSUT My duties and

responsibilities include inter alia representing United University Professions (UUP) a

collective bargaining representative which is one ofNYSUTs affiliates and representing

the members of the UUP bargaining unit

2 In the course of my duties I assist UUP with contract grievances filed

pursuant to the collective bargaining agreement between UUP and the State and I also

assist UUP with improper practice charges filed with the Public Employment Relations

Board (PERB) pursuant to New York Civil Service Law Article 14 (also known as the

Taylor Law)

3 On or about November 192008 I filed an improper practice charge with

PERB on UUPs behalf The charge alleged that the State committed an improper

practice in violation of the Taylor Law by retaliating against a UUP member due to his

protected union activity Specifically the State non-renewed the clinical appointment of

UUP member Jeffrey Malkan in retaliation for UUPs efforts to obtain a name-clearing

hearing for him with regard to the States terminationof his separate appointment as

Director of the Legal Research and Writing program at SUNY Buffalo Law School

4 My understanding is that Mr Malkan through his attorney filed the

above-captioned Claim in the Court of Claims asserting that the States non-renewal of

his appointment as clinical professor constituted a breach of contract My further

understanding is that the State has brought a motion to dismiss the above-captioned

Claim on the ground inter alia that Mr Malkans exclusive remedy is the grievance

procedure afforded by the collective bargaining agreement between UUP and the State

5 I have reviewed the States motion papers which were provided to me by

the attorney representing Mr Malkan in the above-captioned Court of Claims case

(Richard E Casagrande Marilyn Raskin-Ortiz of Counsel)

6 I submit this affidavit to address the States apparent confusion regarding

the distinction between a PERB charge and a contract grievance its mistaken belief that a

contract grievance was filed with regard to Mr Malkans non-renewal as clinical

professor and its mistaken notion that Mr Malkans exclusive remedy is the grievance

procedure afforded by the collective bargaining agreement

7 The States misconceptions about these issues appear at various points

throughout the October 26 2012 Affidavit of Wendy Morcio submitted in support of the

States motion to dismiss the Claim

The Distinction Between a PERB Charge and a Contract Grievance

8 The following excerpts from the Morcio affidavit illustrate the States

failure to recognize the distinction between a PERB charge and a contract grievance

UUP member Jeffrey Malkan in retaliation for UUPs efforts to obtain a name-clearing

hearing for him with regard to the States terminationof his separate appointment as

Director of the Legal Research and Writing program at SUNY Buffalo Law School

4 My understanding is that Mr Malkan through his attorney filed the

above-captioned Claim in the Court of Claims asserting that the States non-renewal of

his appointment as clinical professor constituted a breach of contract My further

understanding is that the State has brought a motion to dismiss the above-captioned

Claim on the ground inter alia that Mr Malkans exclusive remedy is the grievance

procedure afforded by the collective bargaining agreement between UUP and the State

5 I have reviewed the States motion papers which were provided to me by

the attorney representing Mr Malkan in the above-captioned Court of Claims case

(Richard E Casagrande Marilyn Raskin-Ortiz of Counsel)

6 I submit this affidavit to address the States apparent confusion regarding

the distinction between a PERB charge and a contract grievance its mistaken belief that a

contract grievance was filed with regard to Mr Malkans non-renewal as clinical

professor and its mistaken notion that Mr Malkans exclusive remedy is the grievance

procedure afforded by the collective bargaining agreement

7 The States misconceptions about these issues appear at various points

throughout the October 26 2012 Affidavit of Wendy Morcio submitted in support of the

States motion to dismiss the Claim

The Distinction Between a PERB Charge and a Contract Grievance

8 The following excerpts from the Morcio affidavit illustrate the States

failure to recognize the distinction between a PERB charge and a contract grievance

Morcio affidavit at ~ 6 In accordance with the [collective bargaining]

Agreement the UUP filed an improper practice charges [sic] on behalf of the grievant

Claimant with the Public Employment Relations Board (Italics added)

Morcio affidavit at 1 15 Analogous to our case Claimant in Munroe filed an

extensive administrative proceedings [sic] under her collective bargaining agreement

(Italics added)

Morcio affidavit at ~ 17 this employment dispute must be addressed through

collective bargaining and thus PERB action is the Claimants exclusive remedy (Italics

added)

Morcio affidavit at ~ 24 Both the language in the statute and the Collective

Bargaining Agreement mandate that such employment disputes are to be resolved by

binding arbitration before the PERB (Italics added)

Morcio affidavit at ~ 25 Claimant has filed a grievance with PERB (Italics

added)

9 PERBs jurisdiction derives from a statute specifically NY Civil Service

Law Article 14 (also known as the Taylor Law) PERBs jurisdiction does not derive

from a collective bargaining agreement PERB has jurisdiction over improper practice

proceedings which are commenced by the filing of an improper practice charge such

as the charge filed by UUP alleging that the non-renewal ofUUP member Jeffrey Malkan

was in retaliation for his protected union activity (see paragraph 3 above)

10 Grievances are not filed with PERB Grievances are filed pursuant to the

negotiated grievance procedures contained in a collective bargaining agreement A

grievance can be pursued to binding arbitration if the collective bargaining agreement

provides for this as a part of the negotiated grievance procedure PERB is not the forum

in which a contract grievance is filed nor is it the forum in which a grievance can be

pursued to binding arbitration

11 In the interest of avoiding further confusion I note for the Court and

Defendant that the collective bargaining agreement between UUP and the State does

afford UUP the option of filing a contract grievance (instead of a charge with PERB) to

pursue a claim against the State for retaliating against an employee based on his having

engaged in protected union activity Once the choice is made as to which forum to utilize

for such a claim the option becomes exclusive In Mr Malkans situation the choice

was made to utilize the PERB forum for pursuit of the claim that the State retaliated

against him for engaging in protected union activity

A contract grievance was not filed with regard to Mr Malkans non-renewaL

12 The collective bargaining agreement is a contract between UUP and the

State Mr Malkans employment contract is an individual contract between the

University and Mr Malkan The collective bargaining agreement does not address the

contents of appointment letters but rather only the length of time an employee must

receive before their appointment will end Therefore a claim that the individual contract

has been breached cannot be the subject of a grievance pursuant to the collective

bargaining agreement except insofar as the issue relates to a failure to abide by the

procedural requirements set forth in the CBA (Le time frame and advance notice)

13 In the present situation Mr Malkan does not claim that the State failed to

abide by the procedural requirements set forth in the CBA (as distinguished from

procedural requirements set forth elsewhere eg the faculty by-laws ofthe Law School)

Accordingly there was no violation of the collective bargaining agreement and therefore

no basis for filing a grievance pursuant to the collective bargaining agreement

14 By way of contrast if the issue was that an employee was laid off in

violation of the order of retrenchment provided for in the collective bargaining agreement

that could be grieved as a violation of Article 35 of the collective bargaining agreement

Or if the issue was that an employee was denied permanent or continuing appointment as

provided for in Article 33 of the collective bargaining agreement that could be grieved

as a violation of Article 33

15 Because the Claim before this Court could not have been brought as a

grievance pursuant to the collective bargaining agreement Defendant is incorrect in its

assertion that Mr Malkans exclusive remedy is the grievance procedure afforded by

the collective bargaining agreement II

Sworn to before me this i h day of December 2012

CcLbJ Yn amptJ1~ rxJ No Public l04649cwal141

LVNDAMBROWN Notary Pubic State of New York

QualIfIed In Niagara County shyMy CommIalDn ExpIIWI Nov 14 2Cl

provides for this as a part of the negotiated grievance procedure PERB is not the forum

in which a contract grievance is filed nor is it the forum in which a grievance can be

pursued to binding arbitration

11 In the interest of avoiding further confusion I note for the Court and

Defendant that the collective bargaining agreement between UUP and the State does

afford UUP the option of filing a contract grievance (instead of a charge with PERB) to

pursue a claim against the State for retaliating against an employee based on his having

engaged in protected union activity Once the choice is made as to which forum to utilize

for such a claim the option becomes exclusive In Mr Malkans situation the choice

was made to utilize the PERB forum for pursuit of the claim that the State retaliated

against him for engaging in protected union activity

A contract grievance was not filed with regard to Mr Malkans non-renewaL

12 The collective bargaining agreement is a contract between UUP and the

State Mr Malkans employment contract is an individual contract between the

University and Mr Malkan The collective bargaining agreement does not address the

contents of appointment letters but rather only the length of time an employee must

receive before their appointment will end Therefore a claim that the individual contract

has been breached cannot be the subject of a grievance pursuant to the collective

bargaining agreement except insofar as the issue relates to a failure to abide by the

procedural requirements set forth in the CBA (Le time frame and advance notice)

13 In the present situation Mr Malkan does not claim that the State failed to

abide by the procedural requirements set forth in the CBA (as distinguished from

procedural requirements set forth elsewhere eg the faculty by-laws ofthe Law School)

Accordingly there was no violation of the collective bargaining agreement and therefore

no basis for filing a grievance pursuant to the collective bargaining agreement

14 By way of contrast if the issue was that an employee was laid off in

violation of the order of retrenchment provided for in the collective bargaining agreement

that could be grieved as a violation of Article 35 of the collective bargaining agreement

Or if the issue was that an employee was denied permanent or continuing appointment as

provided for in Article 33 of the collective bargaining agreement that could be grieved

as a violation of Article 33

15 Because the Claim before this Court could not have been brought as a

grievance pursuant to the collective bargaining agreement Defendant is incorrect in its

assertion that Mr Malkans exclusive remedy is the grievance procedure afforded by

the collective bargaining agreement II

Sworn to before me this i h day of December 2012

CcLbJ Yn amptJ1~ rxJ No Public l04649cwal141

LVNDAMBROWN Notary Pubic State of New York

QualIfIed In Niagara County shyMy CommIalDn ExpIIWI Nov 14 2Cl

Accordingly there was no violation of the collective bargaining agreement and therefore

no basis for filing a grievance pursuant to the collective bargaining agreement

14 By way of contrast if the issue was that an employee was laid off in

violation of the order of retrenchment provided for in the collective bargaining agreement

that could be grieved as a violation of Article 35 of the collective bargaining agreement

Or if the issue was that an employee was denied permanent or continuing appointment as

provided for in Article 33 of the collective bargaining agreement that could be grieved

as a violation of Article 33

15 Because the Claim before this Court could not have been brought as a

grievance pursuant to the collective bargaining agreement Defendant is incorrect in its

assertion that Mr Malkans exclusive remedy is the grievance procedure afforded by

the collective bargaining agreement II

Sworn to before me this i h day of December 2012

CcLbJ Yn amptJ1~ rxJ No Public l04649cwal141

LVNDAMBROWN Notary Pubic State of New York

QualIfIed In Niagara County shyMy CommIalDn ExpIIWI Nov 14 2Cl