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April 21, 2011

Assignment of personnel

Assignment of personnel
Westchester Co. v Westchester Co. Correction Officers Benev. Asso., Inc., 269 AD2 528

Sometimes an arbitrator will make an award that sets out terms and conditions with respect to the assignment of personnel. In deciding Westchester, the Appellate Division identified some of the limitations on the authority of an arbitrator to require such placements or assignments.

A hearing was held to determine if Westchester County correction officer Elsie Vallespi should be reinstated from disability leave. Vallespi had been placed on such leave pursuant to Section 207-c of the General Municipal Law.

Vallespi was placed on Section 207-c leave after she alleged that she suffered “psychological ramifications” as a result of a “verbal assault” by a supervisor. She returned to her job a few months later but on the day she returned she “had incidental contact with the same supervisor” and, as a result, again went out on an extended disability leave.

The arbitrator decided that Vallespi could now be reinstated “without restriction”, provided that “she is assigned to (1) the Women’s Unit for the 3-11 pm shift; (2) [the supervisor] is assigned to another shift or to a different unit; and (3) for the first 30 days of [Vallespi’s] return, [the supervisor] is not to be assigned on overtime more than once to the same shift and unit as [Vallespi]”.

The county objected and filed an Article 75 petition seeking to vacate the arbitration award. The Appellate Division affirmed a lower court’s order modifying the arbitration award by striking the assignment limitations directed by the arbitrator.

Agreeing with the Supreme Court, the Appellate Division said that “the arbitrator lacked the authority to direct how and when the County could assign its correction officer personnel.” Imposing such conditions, said the court, violated a strong public policy.

The court held that the terms and conditions set by the arbitrator “usurped the authority of the Westchester Department of Correction to determine where and when to assign its correction officer personnel.”

Considering the need to manage and control of the County’s prison population, “it would be imprudent to allow a third-party such as an arbitrator to determine the placement of correction officers....”
Clearly here the court was influenced by the special and unique duties of correction officers and the responsibility of the county to maintain security of its prison population. In another situation, such as directing the assignment or placement of individuals not having such security responsibilities, the courts probably would confirm an arbitration award providing for the particular assignment of an individual.

The courts may apply the rationale set out in Westchester in cases involving arbitration awards affecting the assignment of teachers and other public employees having specializes duties or for which special qualifications have been established.


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