Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Monday, November 30, 2015

Arbitrator directs the reinstatement of employees laid off in violation of the “meet and confer” provision mandated by the collective bargaining agreement


Arbitrator directs the reinstatement of employees laid off in violation of the “meet and confer” provision mandated by the collective bargaining agreement
Matter of Certain Controversies Between Social Serv. Empls. Union, Local 371 v City of New York, 2015 NY Slip Op 08658, Appellate Division, First Department

Underlying this case is an arbitration award that ordered the City of New York[City] to reinstate laid-off employees with back pay.

The arbitrator found that the City had failed to comply with the "meet-and-confer" requirement of the relevant collective bargaining agreement [CBA]. This provision required that,  prior to any layoffs, the City meet and confer with the designated representatives of the appropriate employee organization or organizations, here Social Service Employees Union, Local 371 [Union], with the objective of considering feasible alternatives to all or part of the projected layoffs.

The Union filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitration award compelling the City to reinstate the employees to there former positions with back salary and benefits. The City, on the other hand, filed a petition seeking to vacate the award. Supreme Court confirmed the award, and the City appeal from that order to the Appellate Division. The Appellate Division found that the arbitration award “merely compels the City to follow the procedure delineated in the citywide collective bargaining agreement” and was therefore properly confirmed the Supreme Court.

The court explained that the citywide CBA outlined various requirements the City must meet before laying off employees including providing the appropriate union or unions with notice of layoffs "not less than thirty days (30) before the effective dates of projected layoffs" and then the "designated representatives of the City” were to “meet and confer with the designated representatives of the appropriate union” to consider "feasible alternatives to all or part of such scheduled layoffs."

The Appellate Division said that this mandatory "meet-and-confer" provision was not a mere formality but set out a non-exhaustive list of potential "feasible alternatives" including:

"i. the transfer of employees to other agencies with retraining, if necessary, consistent with Civil Service law but without regard to the Civil Service title,

"ii. the use of Federal and State funds whenever possible to retain or re-employ employees scheduled for layoff,

"iii. the elimination or reduction of the amount of work contracted out to independent contractors, and

"iv. encouragement of early retirement and the expediting of the processing of retirement applications."

Significantly, the citywide CBA provides for dispute resolution by “final and binding” arbitration, whereby the arbitrator may direct "such relief as the arbitrator deems necessary and proper,” subject to "certain limitations and any applicable limitations of law."

Although it was conceded that City gave proper notice to the Union about the layoffs, the Unioncommenced arbitration in the City's Office of Collective Bargaining, alleging that the City terminated certain employees without satisfying the citywide CBA's meet-and-confer requirement. Although there actually was a meeting, the Appellate Division said that crux of the disagreement was that at the “meet and confer” meeting the City [1] did not offer any alternatives for the 18 employees to be laid off, [2] there were no discussions about other alternatives to layoffs, and [3] the Unionwas not asked to submit proposals to avoid the layoffs.

The arbitrator analyzed the record of the meeting and determined that meeting did not satisfy the meet-and-confer requirement, because "feasible alternatives" to layoffs were not properly discussed. As a remedy, the arbitrator ordered the reinstatement of the laid off employees to their former position with full back pay.

The Appellate Division said that it was “well settled” that courts review arbitration awards with a high level of deference and will not vacate and arbitration award unless it finds that "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, said the court, an arbitrator's award will not be vacated when there is "some basis in the record for each of the arbitrator's findings," citing Branciforte v Levey, 222 AD2d 276.

The Appellate Division found that the arbitrator's determination had a basis in the record and that the arbitrator noted that some the employees received layoff letters the day after the meeting. This “suggested that the City had already made up its mind about the layoffs before the meeting.” The court concluded that “this evidence constitutes a rational basis for the arbitrator's determination that the ... meeting did not fulfill the meet-and-confer requirement.”

The City’s argued that “the remedy of reinstatement with back pay violated a strong public policy by infringing upon the ‘managerial prerogative’ reserved to the City and Administrative Code of the City of NY §12-307(b), which ‘specifically and clearly removes from collective bargaining considerations the right of the public employer to retire its employees from duty because of lack of work or for other legitimate reason.”

The Appellate Division said essentially City contended that the directive to reinstate the employees that had been laid off infringed on the discretion of the City to make firing decisions. The directive, said the court, “does no such thing.” In the works of the court, “Nothing in the arbitrator's award precludes the City from following the citywide CBA procedure to which it agreed and ultimately laying off the [employees]. There is no managerial prerogative to violate the contract. As a proper meet-and-confer must precede any layoff, the arbitrator's remedy simply restored the status quo pending a proper meet-and-confer.”

Thus, the court concluded that the arbitrator's award "merely returned [the employees laid off] to the status they would have occupied had they not been wrongfully dismissed." By ordering the reinstatement of the employees that had been laid off the arbitrator made it possible for the contract to be executed as intended.

Accordingly, said the Appellate Division, “the judgment of the Supreme Court … confirming the arbitration award … should be affirmed, without costs.”

The decision is posted on the Internet at:

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/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.