September 10, 2010

Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action

Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action
Mancuso v Crew, NYS Supreme Court, [Not selected for publication in the Official Reports]

If a collective bargaining agreement contains a “contract grievance procedure,” must an employee who has been disciplined exhaust the contract grievance procedure before he or she may challenge the disciplinary action pursuant to Section 75 of the Civil Service Law?

As the Mancuso case demonstrates, the answer can be no, but only if the collective bargaining agreement does not provide a contract disciplinary procedure in place of Section 75.

“(A) union is free to bargain away its members’ statutory rights when that bargain is expressly stated in the agreement,” a state Supreme Court Justice ruled in the Mancuso case. But the mere existence of a grievance procedure is insufficient to prove that the union had negotiated an alternative to Section 75. When the employer took disciplinary action against employees, it could not avoid challenges under Section 75, even though none of the employees involved had used the grievance procedure past the second step.

Nicholas Mancuso sued the New York City Board of Education on behalf of 20 School Safety Officers whom the board had suspended without pay, or terminated, for such misconduct as a drug-related arrest, sexual misconduct or excessive absenteeism. The employees all held positions in the non-competitive class. There was no question that the employees were protected by Section 75 since all had served at least five continuous years in nonpolicy-making positions. [See Civil Service Law Section 75.1(c)]

Mancuso claimed the school board violated the due process rights of the employees in the disciplinary process. He contended that the employees had been suspended more than 30 days -- the maximum period permitted by Section 75 pending a disciplinary hearing and determination of the charges. [Section 75.3] Mancuso argued that the employees were entitled to back pay for any period of suspension in excess of this 30-day statutory period to the extent that the employees themselves did not cause any delay in the disciplinary proceeding.

The Board of Education, on the other hand, argued that Mancuso’s petition had to be dismissed because “10 of the 20 named petitioners utilized the grievance procedure provided by their collective bargaining agreement [CBA] to Step I or Step II, but did not complete Step III or Step IV, and thus have failed to exhaust their administrative remedies, as have [the 10] who did not pursue the grievance procedures at all.”

State Supreme Court Justice Belen found that there was no requirement that the employees use or complete the grievance procedures contained in their agreement before they were entitled to the benefits of Section 75. The contract did not purport to alter or supersede Civil Service Law Section 75, Belen said. In other words, the contract did not set out a contract disciplinary procedure in lieu of Section 75.

Justice Belen observed that the contract provided “nothing contained herein shall be construed to deny any employee his rights under Section 15 of the New York Civil Rights Law or under applicable civil service laws and regulations.”

In addition, the decision noted, “there is no provision in the agreement that states that an employee must utilize and exhaust the grievance procedure prior to utilizing his remedies provided by the Civil Service Law.”

The Court said that the employees including those “who were found guilty of the charges and whose employment was terminated,” are still entitled to payment for the period of any suspension in excess of 30 days and remanded the matter to the Board of Education for “the purpose of providing petitioners with the Civil Service Law Section 75(3) hearings where appropriate and for the computation of payment for any suspension that exceeded the statutory period.

Section 76 of the Civil Service Law, authorizes Taylor Law negotiations concerning a “contract disciplinary procedure” in lieu of the statutory disciplinary procedure otherwise applicable. A parallel provision is contained in Section 3020-a of the Education Law, the Section 75 equivalent for teachers and school administrators. In contrast, a “contract grievance procedure” typically is used to deal with an alleged failure to implement or the violation of the terms of a collective bargaining agreement.
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