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Tuesday, September 13, 2011

Electing a disciplinary penalty

Electing a disciplinary penalty
Public Employees Federation v NYS Workers' Compensation Board, NYS Supreme Court, Judge Mason, [Not selected for publication in the Official Reports]

This decision by Judge Reynold N. Mason resolves an appeal from a disciplinary arbitration. In addition to explaining substituting negotiated disciplinary procedures for statutory procedures such as those set out in Section 75 of the Civil Service Law, it provided a rather unusual remedy: the employee is given a choice of the disciplinary penalty to be imposed.

While conducting a hearing, a Workers Compensation Board Judge, Herbert L. Levy, told a claimant's attorney to “shut up.”

An investigation followed and Levy admitted to using this language, explaining that he had been “attempting to say something dramatic to break th[e] emotionalism that [the attorney] was involved in,” and to get her, the attorney, to stop talking and “get the hearing back on track.” Levy also conceded that his plan was “perhaps ill-conceived.”

Disciplinary charges were filed charges against Levy alleging “misconduct and/or incompetence.” The Board claimed that he had violated it policy “that Board employees maintain a civil, courteous, respectful and professional attitude and practice” and proposed a penalty of a ten-day suspension from work without pay.

Levy rejected the proposed penalty/settlement and his disciplinary grievance was submitted to arbitration in accordance with the terms of the collective bargaining agreement [CBA].

Arbitrator Max M. Doner found Levy guilty of misconduct and/or incompetence in the performance of his duties as law judge. The penalty imposed: a fine of $2,400.

Levy filed an Article 75 petition seeking to vacate the arbitrator's award on the grounds that the arbitrator had exceeded his powers and thus his determination is “arbitrary, capricious and irrational.”

Levy also contended that the award violates the strong policy of the State of New York and “denies petitioner his Constitutional right to due process of law....” The Board, on the other hand, filed a motion to confirm the award.

Levy major arguments: (1) The collective bargaining agreement provides for “compulsory” binding arbitration and accordingly “the award would have to be in accord with due process and supported by adequate evidence in the record in order to be sustained;” and (2) The penalty imposed, a fine of $2,400, violates public policy.

The collective bargaining agreement

Judge Mason rejected Levy's “compulsory” binding arbitration theory.

Citing Antinore v State of New York, 40 NY2d 6, the court said that “a provision in a public employee's CBA which provides for binding arbitration as the method for disposing of challenges to disciplinary action in lieu of a statutory disciplinary procedure such as Section 75 of the Civil Service Law is deemed to have been consented to by the employee (as such provision was voluntarily agreed to by the employee's representative, the union)....”

Accordingly, Levy's submission to arbitration pursuant to his CBA is deemed to be consented to, not compulsory.

The public policy issue

Judge Mason also rejected Levy's argument that the arbitrator's imposition of a $2,400 fine is in excess of his authority and is “arbitrary, capricious and irregular” in that it violates the “strong public policy” of New York State because Section 75 provides for a fine of not to exceed $100.

He said that because the CBA's disciplinary grievance procedure replaced Section 75 and provides that the arbitrator is to determine guilt and the appropriate penalty, the arbitrator is neither subject to nor limited by the penalties contained in Section 75.

As to the public policy issue, the court said that a fine to be imposed against a public employee not to exceed $100, does not constitute an expression of “public policy” such that the arbitrator's imposition of a fine greater than $100 is violative of public policy and must be set aside.

According to Judge Mason, the fine of $2,400 imposed by the arbitrator appears to be a reduction from the original penalty imposed -- a 10-day suspension without pay.

But, said the court, if Levy disagreed and “would actually prefer to suffer the 10-day suspension rather than pay $2,400,” he may elect the suspension since he “should not be worse off for having sought review of the original finding and penalty” by an arbitrator.”

Sustaining the determination of guilt, Judge Mason modified the award to allow Levy to elect the penalty he preferred.

Judge Mason applied the following standards in reaching his determination:

1. An arbitrator is free to apply his own sense of law and equity to the facts as he has found them to be in resolving a controversy, including consideration of the employee's personnel file in setting the penalty to be imposed.

2. The court's authority for overturning an arbitration award is limited to those provided under Article 75 of the Civil Practice Law and Rules.

3. Any limitation upon the remedial power of the arbitrator must be clearly contained in the arbitration clause.

4. Although an award which is violative of public policy will not be permitted to stand, courts must be careful not to decide the dispute on the merits under the guise of public policy.

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

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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