STATE OF NEW YORK

COURT OF CLAIMS

JEFFREY MALKAN, Claimant,

AFFIDAVIT IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS Claim No. 117676 Hon. Jeremiah 1. Moriarity III

STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT BUFFALO), Defendant.

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 ofNYSUT's 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 19,2008, I filed an improper practice charge with The charge alleged that the State committed an improper

PERB on UUP's behalf.

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 UUP's efforts to obtain a name-clearing hearing for him with regard to the State's termination.of 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 State's 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. Malkan's exclusive remedy is the grievance procedure afforded by the collective bargaining agreement between UUP and the State. 5. I have reviewed the State's 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 State's 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. Malkan's non-renewal as clinical professor; and its mistaken notion that Mr. Malkan's "exclusive remedy is the grievance procedure afforded by the collective bargaining agreement". 7. The State's misconceptions about these issues appear at various points

throughout the October 26, 2012 Affidavit of Wendy Morcio, submitted in support of the State's 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 State's

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 Claimant's 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 added.)
~

25: "Claimant has filed a grievance with PERB ...." (Italics

9.

PERB's jurisdiction derives from a statute, specifically, N.Y. Civil Service

Law, Article 14 (also known as the Taylor Law). PERB's 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 A

negotiated grievance procedures contained in a collective bargaining agreement.

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. Malkan's 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. Malkan's non-renewaL 12. The collective bargaining agreement is a contract between UUP and the

State. Mr. Malkan's 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, e.g., 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. Malkan's "exclusive remedy is the grievance procedure afforded by the collective bargaining agreement II

Sworn to before me this

i h day of December, 2012.

C:!:cLbJ. Yn, &tJ1~ rxJ

No Public ;'

l04649/cwal141

Notary Pubic, State of New York

QualIfIed In Niagara County My CommIalDn ExpIIWI Nov. 14.

LVNDAM.BROWN

2Cl.!.::.