May 27, 2016

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action
Woods v State Univ. of N.Y., 2016 NY Slip Op 04084, Appellate Division, Third Department

The genesis of Woods v State University of New York [SUNY], was Norman Woods being served with a notice of discipline issued in accordance with the terms of the collective bargaining agreement [CBA] negotiated by State and Woods’ collective bargaining organization, the Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA]. In October 2013 the Disciplinary Arbitrator issued an award in which he found Woods guilty of four of the five charges brought against him and imposed a penalty of a fine and, as relevant to this appeal, "a one (1) year probation period."

In June 2014 Woods’ supervisor issued a negative "final" probationary evaluation and on the same day SUNY's director of human resources wrote to Woods to advise him that his "disciplinary probationary appointment" at SUNY was terminated.

In response to NYSCOPBA filing a grievance challenging Woods’ termination from his “disciplinary probation, SUNY's director of employee relations wrote to NYSCOPBA to advise it that Woods had not been disciplined and "returned" the grievance to NYSCOPBA. NYSCOPBA initiated a proceeding seeking to compel arbitration pursuant to CPLR §7503, or, in the alternative, to vacate and annul the termination pursuant to CPLR Article 78. Supreme Court converted the proceeding to one seeking to confirm the award pursuant to CPLR §7511 and directed the parties to seek clarification of the October 2013 arbitration award.

The Appellate Division reversed the Supreme Court ruling. The court explained while public policy generally favors the resolution of labor disputes through arbitration, not  every dispute is arbitrable. When considering a petition to compel arbitration courts make "two distinct inquiries:" [1] is arbitration of the issue is authorized by the Taylor Law and permitted as a matter of public policy, and, [2] did the parties agreed in the CBA to submit the issue to arbitration.

Although SUNY had contended that Woods had waived the right to pursue arbitration should he be terminated during his disciplinary probationary period, the Appellate Division, conceding that such right may be waived, held that Woods was not a party to a "last chance agreement" reciting a clear and unequivocal waiver of negotiated arbitration procedure set out in the CBA.

Although SUNY contended that “by virtue of the October 2013 arbitration award, [1] Woods was a probationary employee, and [2] the parties did not agree to arbitrate issues regarding the termination of probationary employees,” the Appellate Division ruled that the issue before it was to determine whether there is a "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.*

The majority of the Appellate Division held that the CBA provides that "[d]iscipline shall be imposed upon employees otherwise subject to the provisions of §§ 75 and 76 of the Civil Service Law only pursuant to [the contract disciplinary grievance procedure] in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law …." Further, said the majority, it was “mindful that one of the referenced statutes provides that certain employees in the classified civil service who have completed a probationary period of employment may not be disciplined "except for incompetency or misconduct shown after a hearing upon stated charges."

The majority said that it did not find that the cited provision of the CBA “unambiguously excludes" Woods, as an individual serving a disciplinary probationary period, from its coverage and it was for an arbitrator to interpret and apply the CBA, and the court did not have the authority to consider the merits of SUNY's argument.”

Holding that the CBA provision is ambiguous, the majority said that an arbitrator must decide whether it governs Woods' summary dismissal from service during his disciplinary probationary status and Supreme Court should have granted NYSCOPBA's petition seeking to compel arbitration.

Although this was apparently not the situation in Woods v SUNY, disciplinary settlement agreements providing for a “disciplinary probation” typically set out the reason permitting the employee to be summarily terminated from his or her position during his or her “disciplinary probation” period.

Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement that included a disciplinary probation component whereby the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.” Taylor was terminated during his disciplinary probationary period without a hearing for “failing to give a fair day’s work and sleeping during scheduled working hours.” However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, in Outley v Upstate Med. Univ., 60 AD3d 1398 [motion for leave to appeal denied,13 NY3d 708], the Appellate Division sustained the summary termination of Joanne Outley, an employee at SUNY’s Upstate Medical Center [UMC], after it was demonstrated that she had violated the terms of her “disciplinary probation.” UMC and Outley entered into a disciplinary settlement agreement that placed her on "disciplinary probation" for a specified period of time and prohibited her taking any unauthorized absences.

The Appellate Division dismissed Outley’s challenge to her termination explaining that that the record established that Outley had violated the settlement agreement by being on an unauthorized absence during her disciplinary probation period, thus providing UMC with a legally sufficient basis for summarily terminating her employment that was neither arbitrary nor capricious. 

Further, said the court, Outley failed to establish that she "was dismissed in bad faith or for an improper or impermissible reason."

* The decision notes that Judge Rose dissented from the majority opinion.

The decision is posted on the Internet at:


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