Wednesday, October 29, 2014

Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff


Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff
Matter of the Arbitration between Hudson Val. Community Coll. and Hudson Val. Community Coll. Faculty Assn., 2014 NY Slip Op 07240, Appellate Division, Third Department

Christine Raneri, a part-time adjunct professor employed by the Hudson Valley Community College (HVCC), was appointed as a full-time probationary teacher by the College in 2007. In March 2012, HVCC notified Raneri that “her position had been retrenched,” and that her employment would end in August 2012.

The Hudson Valley Community College Faculty Association [Association] submitted a grievance on Raneri's behalf challenging HVCC's decision to retrenchment her from the position. HVCC's president denied the grievance following a hearing and the Association served a demand for arbitration on the college.

HVCC and the County of Rensselaer commenced an Article 75 CPLR action seeking a permanent stay of arbitration [proceeding No. 1]. The Association answered and then cross-petitioned to compel arbitration. The Association also initiated an Article 78 action, proceeding No. 2 against the County, the Board of Trustees of HVCC and others challenging Raneri's retrenchment on the merits. HVCC moved to dismiss the CPLR Article 78 petition.

Supreme Court granted HVCC’s petition in proceeding No. 1, permanently staying arbitration, denied the Association’s cross petition in proceeding No. 1 to compel arbitration, and dismissed the Association’s CPLR Article 78 proceeding (proceeding No. 2).

In its appeal from Supreme Court's ruling concerning proceeding No. 1 the Association contended that Supreme Court erred in determining that the issue of retrenchment was excluded from arbitration by the terms of the CBA and thus was incorrect in permanently staying the arbitration.

The Appellate Division disagreed with the Association’s claim, holding that the sole issue before Supreme Court was whether the CBA reveals that the parties agreed to arbitrate this grievance. Noting that the CBA provides that grievances — defined as claims "based upon the interpretation or application of" the CBA — are generally subject to arbitration, the court pointed out that the controlling CBA also provided that "[m]atters relating to [HVCC's] decision to retrench, fill, refill, establish and/or re-establish bargaining unit positions shall not be arbitrable hereunder”. The CBA further provided that if such a staffing issue is grieved, “the decision of the [HVCC] President or designee shall be final and binding and shall constitute the exclusive remedy thereunder."

The Appellate Division, agreeing with Supreme Court, said that this language clearly and “unambiguously manifests the parties' intention to exclude the subject matter of retrenchment from arbitration.”

Turning to the Association’s challenge to the Supreme Court’s dismissal of its Article 78 petition, the Appellate Division said that in reviewing such a claim, a court may not substitute its judgment for that of the administrative body and must confirm the challenged determination unless the body "acted in excess of [its] jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of [its] discretionary power," citing Pell v Board of Educ, 34 NY2d 222.

The court rejected the Association’s argument that the reason given by HVCC to Raneri for the retrenchment — the discontinuance of a particular program — was pretextual.

Although the Association contended that minutes from a curriculum committee meeting held in the same month as the retrenchment revealed that the faculty was advised that the discontinuance would have no impact on student numbers or faculty hours, the Appellate Division noted that affidavits in the record also reveal that, for economic reasons, HVCC was reducing the number of sections in Raneri's teaching area at the time in question and increasing the number of students in each section.

The Association also claimed that the retrenchment violated the CBA in that the positions of two faculty members in Raneri's teaching area who had less seniority "were not retrenched." The court said that the record showed that both of these instructors were ASE-certified and were scheduled to teach a full load of courses for which this certification was required — and which Raneri, not being ASE-certified, could not teach — in the fall of academic 2012.

Thus, the Appellate Division concluded, "the retrenchment of Raneri's position" was in conformity with a requirement in the CBA that such actions "shall be made in inverse order of seniority provided a faculty member has the qualifications to teach the courses to be taught" (emphasis in the decision).*

Regarding the Association’s claim that an incumbent serving in an adjunct faculty should be laid off first, the court noted that the adjunct faculty member also possessed ASE certification and taught classes for which such certification was required; thus, retrenching his position would not have prevented Raneri's being laid off

As the record revealed that assignments were made for legitimate reasons having to do with the instructors' qualifications and other responsibilities, the Appellate Division said that “Supreme Court did not err in determining that HVCC's decision was not arbitrary or capricious, an abuse of discretion or in violation of lawful procedure.”

* The Appellate Division said that it agreed with Supreme Court's view that “this provision requires a faculty member to be qualified to teach upcoming classes, rather than those for which the faculty member's qualifications may have sufficed in previous years.”

The decision is posted on the Internet at:

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