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Tuesday, June 28, 2016

Where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement


Where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement
DiGregorio v MTA Metro-N. R.R., 2016 NY Slip Op 04807, Appellate Division, First Department

A former employee of MTA Metro-North Railroad, Lisa DiGregorio, sued MTA Metro-North alleging it had violated §75-b of New York State’s Civil Service Law, the so-called “whistle-blower statute” applicable to employees of the State and political subdivisions of the State.

The Appellate Division, citing Subdivisions (3)(b) and (3)(c) of Civil Service Law §75-b, affirmed Supreme Court’s dismissal of her petition, explaining that Lisa DiGregorio’s complaint “may not be litigated in this forum” because the relevant collective bargaining agreement contained provisions addressing situations involving the employer's taking of adverse personnel actions and which contains a final and binding arbitration provision.

Accordingly, said the court, DiGregorio was required to arbitrate her complaint.* 

CSL §75-b(2)(a) provides that “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding  the employee's employment because the employee disclosed allegations of  “improper governmental action” to a  governmental body if the employee satisfies certain conditions.

CSL §75-b(3)(b) provides that “Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under [subdivision 2 of CSL §75-b], he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement.” [Emphasis supplied].

In contrast, if a public employee is not subject to any of the provisions of CSL §75-b(2)(a) or §75-b(2)(b), the individual may commence “an action in a court of competent jurisdiction under the same terms and conditions as set out in Labor Law Article 25-c.”

Article 25-c[4] of the Labor Law provides that where an employer is alleged to have violated Article 25-c, “An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within one year after the alleged retaliatory personnel action was taken.”

* In Kowaleski v New York State Dept. of Correctional Servs., 16 NY3d 85, the Court of Appeals held that an arbitrator’s refusal to hear an employee’s “whistle blower” defense in the course of disciplinary hearing required the vacating of the award.

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/

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