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Monday, April 01, 2013

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement


The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement
State of New York - Unified Ct. Sys. v Association of Surrogate's & Supreme Ct. Reporters within the City of New York, 2013 NY Slip Op 02155, Appellate Division, First Department

In Unified Court System the Appellate Division considered the viability of demanding that an appeal of a grievance challenging disciplinary action taken against an employee be submitted to arbitration. Its conclusion: the availability of arbitration to challenge an employer’s disciplinary decision is controlled by the appeal procedure set out in the collective bargaining agreement.

Although the typical collective bargaining agreement [CBA] provides that an appeal of a grievance challenging disciplinary action taken against an employee is ultimately to be submitted to arbitration, in this instance the Appellate Division unanimously reversed a Supreme Court order compelling the arbitration of a disciplinary termination of an employee in the collective bargaining unit and “permanently stayed” the arbitration.

The court explained that although it did not find any statutory, constitutional or public policy prohibition barring the arbitration of this dispute involving the termination of an employee, the relevant CBA did not provide for the arbitration of the employer's disciplinary determination.

The Appellate Division said that its review of the CBA indicated that the parties had not agreed to arbitrate such a dispute. Rather, said the court, the CBA provided that an employee aggrieved by a disciplinary penalty or punishment “may appeal from the determination by petition to the Chief Administrative Judge or by an application pursuant to CPLR Article 78.”

Accordingly, the arguments presented in support of the Association's demand for arbitration to consider the matter as a contract grievance or, in the alternative, as a non-contract grievance, were deemed irrelevant and the Article set out in the CBA that the Association contended provided for the arbitration of this dispute was held inapplicable in this instance.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02155.htm


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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