February 15, 2016

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement
City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00977, Appellate Division, Second Department [Appeal I]
City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00970, Appellate Division, Second Department [Appeal II]

The Appellate Division handed down two decisions involving the same parties on the same day. 2016 NY Slip Op 00977 [Appeal I] considered the merits of a disciplinary determination while 2016 NY Slip Op 00970 [Appeal II] considered the merits of a disciplinary determination that resulted in the filing of an appeal concerning the issues decided in Appeal I.

Appeal I

In this proceeding pursuant to CPLR Article 78 Jay Gusler challenged his demotion from the position of lieutenant to the position of firefighter. Supreme Court granted the City of Long Beach’s motion to dismiss the proceeding and, in effect, denied Gusler’s petition and dismissed the proceeding. Gusler appealed the Supreme Court’s ruling.

According to the Appellate Division’s decision, Jay Gusler was a lieutenant in the City of Long Beach Fire Department [Department] and multiple disciplinary and grievance proceedings relating to his employment had been brought or then were pending. 

In a "Settlement Agreement" executed by Long Beach Professional Firefighters Assn., Local 287 [Local 287] and the City of Long Beach  it was agreed that Robert L. Douglas would be appointed to preside over a hearing on the charges pending against Gusler. The settlement agreement also provided that Douglas would have "sole and exclusive authority" to determine the timeliness of the charges, Gusler's guilt or innocence, and the appropriate penalty, if any, to be imposed on Gusler if he were found guilty of one or more of the charges pending against him. 

The parties subsequently agreed that the hearing would be bifurcated. First, Douglas was to determine guilt or innocence. Then, if necessary, he would hold a hearing as to the penalty. The City Manager then would be required to "implement" Douglas's determination as to penalty, if any, without amendment or modification.

Douglas issued an opinion and award finding Gusler guilty of certain charges. He then held a second hearing as to the penalty to be imposed and ultimately determined that the penalty to be imposed was Gusler's demotion from the position of lieutenant to the position of firefighter.

Gusler and Local 287 then initiated a CPLR Article 78 against the City, the City Manager, and the City Council seeking, among other things, to nullify Gusler's demotion, contending that Douglas was without authority to determine that the penalty would be demotion, because that penalty is not provided for under §11-54 of the City Code of the City of Long Beach. In addition Gusler and Local 287 argued that as Douglaswas without authority to issue the penalty of demotion, its implementation — as was required under the settlement agreement — was "arbitrary and capricious, without rational basis, without basis in law, . . . an abuse of discretion, and . . . in excess of [the respondents'] jurisdiction." Long Beach moved to dismiss the proceeding, and, again, the Supreme Court granted the motion and, in effect, denied Gusler and Local 287’s petition and dismissed the proceeding.

The Appellate Division, agreeing that the City Code did not provide for “demotion” as a penalty, explained that “nothing in the City Code precluded the City and the Association from negotiating a collective bargaining agreement that permits imposition of that penalty,” citing Civil Service Law §76[4]. Further, the court pointed out that in the controlling collective bargaining agreement, “the City and the Association expressly authorized the penalty of demotion in cases of certain specified misconduct.”

The Appellate Division found that Douglashad acted within his authority under the settlement agreement to determine the penalty and selected a penalty expressly authorized by the parties themselves. Additionally, said the court, “in abiding by the terms of the settlement agreement, which required the City to impose the penalty determined by Douglas, the imposition of the penalty was not arbitrary or capricious, and the respondents did not abuse their discretion, act without basis in law, irrationally, or in excess of their jurisdiction.”

Appeal II

Referring to the facts stated in its decision in Appeal I, the Appellate Division said that the "Settlement Agreement" between the parties in this matter provided that the parties could challenge or appeal the determinations of the hearing officer, Robert L. Douglas, "through any appropriate means of legal recourse, whether under the collective bargaining agreement [CBA] and/or applicable law."

The relevant CBA provided that the Association had the right to "submit the determination . . . to final and binding arbitration in accordance with the Rules of the New York State Public Employment Relations Board (PERB) for Voluntary Arbitration (Grievance Arbitration), within Fifteen (15) days of the determination, where upon the arbitrator “shall review the record of the hearing and . . . decide if substantial evidence supports the determination and penalty." The CBA further provided that "[t]he arbitrator shall have no authority to consider any matter which was not presented in the course of the discipline and shall be the ultimate authority there from."

On December 14, 2012, Douglasissued his "Opinion and Award" determining that the penalty was to be demotion of Gusler from lieutenant to firefighter. The Association did not serve the City with a demand for arbitration before PERB until 32 days later, on January 15, 2013. The City did not dispute Local 287’s the demand was filed with PERB the same day it was served but, rather, intiated an CPLR Article 75 action to permanently stay the arbitration on the ground that the Association's demand was untimely.

Supreme Court granted the City's petition to permanently stay arbitration, explaining that, in light of the narrowly drawn arbitration provision in the CBA, the timeliness of the Association's demand for arbitration was for the court, not the arbitrator, to decide. The court then found that “under the clear terms of the CBA's arbitration provision,” the demand for arbitration before PERB was not timely. Local 287 appealed the Supreme Court’s ruling.

The Appellate Division said that “Whether the issue of the timeliness of an arbitration demand is to be determined by the court or by the arbitrator depends on the nature and scope of the agreement to arbitrate.” Here the court, agreeing with Supreme Court, found  that the arbitration clause in the CBA “is so narrowly drawn as to clearly withhold the issue of timeliness from the arbitrator.” In addition the Appellate Division pointed out that the CBA provided that “the arbitrator was to decide only whether the hearing officer's ‘determination and penalty’ were supported by ‘substantial evidence’ and not any matter ‘not presented in the course of the discipline’."*

The Appellate Division also sustained Supreme Court’s ruling, on the merits, that the Association's demand for arbitration before PERB was not timely, regardless of whether timeliness was to be measured by service or filing of the demand as the CBA required that the determination be "submit[ted]" in accordance with PERB's rules within 15 days after the determination and the demand for arbitration before PERB was neither served nor filed before January 15, 2013 and both “service and the filing of that demand were indisputably untimely.”

One final argument presented by Local 287 was that its prior demand for arbitration, before a forum other than PERB, could be regarded as complying with the CBA's 15-day limitation on the theory that its seeking arbitration before a different forum was merely a “ministerial error.” However, the decision notes that Local 287’s arguments to the court make clear that the Local’s prior demand was not a ministerial error, “but a considered decision to invoke the jurisdiction of the other forum.” In the words of the Appellate Division, “the issue of the propriety of [invoking the jurisdiction of another forum] which was litigated in another proceeding … is not before us.”

* The issue of the timeliness of the demand did not involve an interpretation of PERB's rules as to whether its jurisdiction is invoked by service or by filing as the demand was served and filed the same day. The issue involved an interpretation of the provisions of the CBA as to whether arbitration was available.

The decision in Appeal I is posted on the Internet at:

The decision in Appeal II is posted on the Internet at:

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