August 14, 2014

Transcribing the hearing in a disciplinary arbitration proceeding

Transcribing the hearing in a disciplinary arbitration proceeding
2014 NY Slip Op 05700, Appellate Division, First Department

In this CPLR Article 75 action Supreme Court’s confirmed the arbitrator’s decision imposing the penalty of termination on an employee [Employee] of the New York City Transit Authority [NYCTA].

Responding to Employee’s appeal, the Appellate Division considered a relatively common issue: “Was the penalty imposed by the arbitrator reasonable?” and an issue less commonly encountered:: "Was a transcript of the hearing in the disciplinary arbitration required?"

Addressing the need to make a transcript of the hearing, the Appellate Division said although it was “troubled by the lack of a transcript to review the record of the arbitration proceeding,” it found no basis to disturb the arbitrator's credibility findings.

Absent a provision in a collective bargaining agreement requiring that the disciplinary hearing be transcribed, having a transcription of an arbitration hearing taken by a hearing reporter is rare.* As the court noted in Jordan v Human Resources Admin. City of New York, 78 AD3d 947, the lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award. The Appellate Division ruled that Jordan failed to establish any grounds for vacating the arbitration award and that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

In Rhinestone v NYCTA, 142 A.D.2d 562, the court noted that “A collective bargaining agreement between the [Rhinestone’s] union and the appellant New York City Transit Authority … provides that employee disciplinary grievances shall be resolved by a four-step grievance procedure, the last step of which is a hearing before the contractually designated arbitrator ….” The agreement also provided that “[n]o transcript of the arbitration hearingshall be required.” At the outset of the arbitration step of a grievance filed by the [Rhinestone], [the arbitrator] ruled that, “absent the consent of the Transit Authority, he would not allow stenographic transcription of the hearing, even if [Rhinestone] were to pay for it.”

In contrast, where a disciplinary hearing is conducted pursuant to §75 of the Civil Service Law a transcript of the hearing must be made and a copy provided to the employee without charge. Indeed, in Ligreci v Honors, 162 AD2d 1010, the Appellate Division held that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing.**Further, the courts have held that the failure to include transcript of the §75 disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, with respect to disciplinary actions initiated pursuant to §3020-a of the Education Law, §3020-a.3.c.(D) provides as follows: “An accurate record of the proceedings shall be kept at the expense of the [Education] department at each such hearing in accordance with the regulations of the commissioner. A copy of the record of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved. The department shall be authorized to utilize any new technology or such other appropriate means to transcribe or record such hearings in an accurate, reliable, efficient and cost-effective manner without any charge to the employee or board of education involved.”

As to the penalty imposed by the arbitrator on Employee, termination, the Appellate Division modified the Supreme Court’s confirmation the arbitrator’s decision, vacating the penalty of dismissal and remanded the matter to the arbitrator “for the imposition of a lesser penalty.”

The Appellate Division said that the termination of Employee, a NYCTA bus driver for 15 years with an unblemished record of employment and who had consistently received positive performance evaluations, and had never been disciplined as the sanction “for a single, alleged transgression is grossly excessive and shocks our sense of fairness,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The court also commented that NYCTA ignored a provision in the collective bargaining agreement between the agency and Employee's union that provided that NYCTA "shall be guided by the principle of progressive discipline in the administration of its disciplinary procedures."

* A collective bargaining agreement may include a provision addressing the making of a disciplinary hearing transcript. For example, Article 33.4(c) of the Administrative Services Unit’s collective bargaining agreement between the State and the Civil Service Employees Association, Inc., for the period 2011-2016 provides: “Unless both parties agree, the proceedings in disciplinary arbitrations should not be tape recorded. The use of transcripts is to be discouraged and the fact that a transcript is made should not extend the date the hearing is closed. The party ordering the transcript shall obtain and pay for an expedited or rush transcript. Either party wishing a transcript at a disciplinary arbitration hearing may provide for one at its own expense and shall provide a copy to the arbitrator and the other party.”

**Presumably the appointing authority did not serve as the hearing officer at the disciplinary hearing.

A Reasonable Disciplinary Penalty Under the Circumstances - A 442+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on