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Wednesday, September 14, 2011

Determining if the grievance is arbitrable


Determining if the grievance is arbitrable
Owen D. Young CSD v Morris, 278 AD2d 940

The significant issue in the Young Central School District case concerned determining if a grievance filed by an employee organization could be submitted to arbitration.

Susan Morris, President of the Van Hornesville Teachers Association, appealed a State Supreme Court's granting of the District's petition to stay submitting a grievance concerning prescription health insurance benefits to arbitration.

The Appellate Division, Fourth Department vacated the stay of arbitration issued by a State Supreme Court Judge. The court commented that “[t]here is a reasonable relationship between the matter in dispute, i.e., prescription health benefits, and the broad arbitration clause [in the collective bargaining agreement] that covers all grieved matters.”

In such cases, said the Appellate Division, arbitrators, rather than the courts, are to determine whether a particular grievance falls within the scope of the substantive provisions of the collective bargaining agreement, citing Board of Education v Watertown Education Association, 93 NY2d 132.

The Appellate Division ruled that the lower court “erred in determining as a matter of law that the matter is not arbitrable.”

Determining probation status when employee's service is interrupted by an absence
Johnston v Triborough Bridge and Tunnel Authority, App. Div., First Dept., 278 A.D.2d 34

Typically, an individual serving a “disciplinary probation” may be terminated from his or her position in accordance with the terms of his or her probationary status.

The lesson of the Johnston case: it is essential to determine if the individual is actually serving as a probationer at the time he or she is dismissed for unsatisfactory service as a probationer; probationary status may not be assumed.

In 1989, Triborough Bridge and Tunnel Authority [TBTA] police officer Edward P. Johnston settled disciplinary charges filed against him by agreeing to be placed “on probation for a period of one year.” A few months later Johnston was injured while on duty and did not return to work until October 1996.

In June 1997, following new allegations of misconduct, TBTA dismissed Johnston from his position without a pre-termination hearing. TBTA's justification for its action:

Johnston is not entitled to a pretermination hearing since the one-year probationary period agreed to in 1989 had not yet expired.

According to TBTA, Johnston's period of probation was tolled during his Johnston's extended absence from work. Essentially TBTA argued that as it had not “waived” any portion of Johnston's disciplinary probation, he was required to actually complete one year of such service.

This view is consistent with the Rules of the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, with respect to absences during a probationary period [4 NYCRR 4.5(g)].

The rules provide that an appointing authority may, in its discretion, consider certain absences “as time served in the probationary term.”

The rule further provides that “[a]ny such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term.” A number of local civil service commissions have adopted a similar rule.

Johnston protested his termination without notice and hearing but the New York City Civil Service Commission dismissed his appeal. The Commission said that it does not have “subject matter jurisdiction to consider the appeal” since Johnston's termination had been pursuant to the 1989 settlement agreement in which he waived the protections of Civil Service Law Section 75 mandating pretermination hearings for tenured employees.

The Appellate Division, First Department, disagreed with the Commission's analysis. It said the Commission apparently “assumed that the waiver contained in the 1989 agreement was still operative” -- it never actually made a finding to that Johnston was still a probationary employee.”

If, on the other hand, said the court, the probationary period had expired, the provisions of Section 75 of the Civil Service Law would control Johnston's dismissal.

Should this be the case, the lawfulness of Johnston's termination without notice and hearing would clearly be within the Commission's jurisdiction.

The Appellate Division remanded the case to the Commission to determine Johnston's probationary status and whether or not the “1989 waiver” remained effective at the time of Johnston's termination.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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