Monday, December 22, 2014

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status
2014 NY Slip Op 08718, Appellate Division, First Department

An individual [Officer] initiated the grievance process set out in collective bargaining agreement challenging the Metropolitan Transportation Authority Police Department’s director of labor relations' action that “purportedly terminated [Officer’s] employment as a police officer”  with Authority’s Police Department. 

When his grievance was denied, Officer demanded that his grievance be submitted to arbitration. However, before the arbitration commenced, Officer filed an Article 78 petition in Supreme Court, New York County, seeking to vacate his “purported termination” from his position.

Supreme Court denied Officer’s petition and dismissed the proceeding on the ground that Officer failed to exhaust his administrative remedies. The Appellate Division sustained the Supreme Court’s ruling.

The Appellate Division explained that the relevant collective bargaining agreement had a "Waiver of Trial Agreement" (Waiver Agreement) incorporated into the collective bargaining agreement's binding arbitration procedure as the means of determining, "in future cases of misconduct," whether Officer had committed a "serious violation" of Authority Police Department’s rules. The Police Department later determined that subsequent to the parties entering into the Waiver Agreement Officer had committed a serious violation.

The Appellate Division said that Officer failed to establish that he was actually terminated before arbitration in violation of the Waiver Agreement.

To the extent a mistake was made when a personnel order, dated August 21, 2012, was issued to all department members stating that Officer had been terminated, the mistake was corrected by the issuing of a revised order, dated April 12, 2013, to all department members stating that Officer was suspended without pay rather than terminated. 

Further, said the Appellate Division, the Department's records demonstrate that effective August 20, 2012 Officer was placed on an unpaid leave of absence.

Similarly, in the event an employee status as reflected in the agency’s records is inconsistent with records of the relevant civil service commission, the commission’s records control absent a finding that the commission’s records are in error.

The decision is posted on the Internet at:


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