September 24, 2018

Determining the availability of arbitration to resolve a dispute between a public employer and an employee organization

Determining the availability of arbitration to resolve a dispute between a public employer and an employee organization
Town of North Hempstead v  Civil Service Employees Association, Inc., Local 1000, 2018 NY Slip Op 06098, Appellate Division, Second Department

An employee of the Town of North Hempstead was served with nine individual disciplinary notices for various instances of alleged "misconduct and insubordination." Each notice individually proposed a penalty of a five-day suspension without pay in the event the employee was found guilty of the charge[s] and specification[s] set out in that particular notice of discipline.

The employee was found guilty of the charge[s] and the specification[s] set out in each one of the nine notices of discipline and filed grievances appealing each of the nine disciplinary decisions and the penalties imposed by the appointing authority. All of the employee's administrative appeals submitted in accordance with the relevant procedural steps set out in the Collective Bargaining Agreement [CBA] between the parties were denied. Ultimately the employee's collective bargaining representative, the Civil Service Employees Association, Inc., Local 1000, [CSEA] filed a demand to arbitrate the employee's nine disciplinary grievances appealing the nine disciplinary determinations.

In response to CSEA's demand to submit the nine grievances to arbitration, North Hempstead filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration for each of the nine disciplinary decisions and penalties imposed on the employee.

In opposition to North Hempstead's petition, CSEA contended that because the aggregate penalty of all the disciplinary decisions exceeded five days' suspension, resolution of the disputes were controlled by Section XII of the CBA, which set forth the disciplinary procedure for those disputes carrying a penalty of six days' suspension or more and which provided for arbitration of the dispute.

In rebuttal North Hempstead argued that as no single proposed disciplinary penalty exceed a five day suspension Section X of the CBA controlled and Section X did not provided for the arbitration of disputes where the disciplinary action resulted in a penalty of up to, and including, a five days' suspension without pay.

Supreme Court, concluding that because the penalty imposed on the employee resulted in a total of 45 days of suspension without pay, held that the grievances were arbitrable and denied North Hempstead's petition to permanently stay arbitration. North Hempstead appealed.

Reversing the lower court's ruling, the Appellate Division explained that there is a two-step test used to determine "whether a dispute between a public sector employer and an employee organization is arbitrable." Initially the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the dispute. It the court finds that there is no prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine if the parties, had in fact, agreed to arbitrate the particular dispute at issue.

Noting that North Hempstead did not contend that arbitration of the grievances at issue was prohibited by law or public policy, the Appellate Division said that in this instance the only issue to address was whether the parties had, in fact, agreed to arbitrate these particular grievances.

In contrast to general labor disputes in the private sector involving arbitration, the Appellate Division, citing Matter of Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 112 AD3d 620, pointed out that the intent of the parties in the public sector to arbitrate alleged violations of provisions set out in a collective bargaining agreement "may not be presumed." Absent "clear, unequivocal agreement to the contrary," the Appellate Division opined that there was a presumption that the parties entering into a collective bargaining agreement in the public sector "did not intend to refer differences which might arise to the arbitration forum."

Contrary to the Union's contention, the Appellate Division found that because the disciplinary notices each carried a penalty of a five-day suspension, "the grievance procedure of Section X of the CBA, which did not permit arbitration, was applicable" notwithstanding the fact that "the aggregate penalty assessed against the employee exceeded five suspension days." In other words, the fact that the aggregate penalty involved exceed "five suspension days" did not place the dispute within the ambit of Section XII of the CBA.*

Further, said the Appellate Division, [1] neither Section X nor Section XII of the CBA provides for any deviation from the respective procedures where an employee may be subject to more than one disciplinary action, and [2] CSEA, by its participation in the administrative grievance procedure, including presenting its appeals to the Labor-Management Committee, "essentially conceded that the dispute fell within the ambit of Section X."

When the grievances "were denied at Step 3," CSEA, in the words of the Appellate Division, "... filed a demand for arbitration, which is not permitted under Section X" of the relevant CBA. As the several grievances at issue were controlled by Section X of the CBA, the Appellate Division held that CSEA "failed to demonstrate that the parties in fact agreed to arbitrate these particular disputes."

Accordingly, the Appellate Division ruled that Supreme Court should have granted North Hempstead's petition to permanently stay arbitration, reversed the lower court's ruling on the law, with costs, and granted North Hempstead petition to permanently stay arbitration.

* Typically a party in a Section X procedure is able to file a CPLR Article 78 petition challenging a Section X decision and, or, penalty while a party to a Section XII procedure is able to challenge the arbitration award by filing a CPLR Article 75 petition.

The decision is posted on the Internet at:


This decision appears to be one of first impression.

With respect to the Appellate Division's observation that CSEA's actions in processing these charges  essentially conceded that the dispute fell under the ambit of Section X of the relevant collective bargaining agreement because it actively participated in the disciplinary appeal procedure, presumably [1] two or more of the nine charges were not served on the employee simultaneously and [2] any motion to consolidate two or more of the nine charges served on the employee was denied.

In contrast, had two or more of the charges been either served simultaneously and, or, consolidated and the penalty imposed for the simultaneously served and, or, consolidated charges exceeded a five day suspension without pay, it could be argued that by imposing such a penalty with respect to such  consolidated and, or, simultaneously served  charges the provisions of Section XII were triggered with respect to such charges.

There is some precedent for incorporating a "Section X" and a Section XII type process in a collective bargaining agreement.

Article 7 of the State's Military Law, Code of Military Justice, provides for processing charges and specification for alleged offenses or misconduct by individuals serving in New York State Militia.**

For example, §130.15 of the Military Law "Commanding officer's non-judicial punishment", provides for "commanding officer's non-judicial punishment" whereby a commanding officer may, in addition to or in lieu of admonition or reprimand, impose certain disciplinary punishments for minor offenses without the intervention of a court-martial. A person punished under authority of §130.15 who deems his or her punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. However, the individual subject to the punishment "may in the meantime be required to undergo the punishment adjudged. The officer who imposes the punishment, his successor in command, and superior authority shall have power to suspend, set aside, or remit any part or amount of the punishment and to restore all rights, privileges and property affected.

In contrast, there are several types of "judicial tribunals" - courts-martial - authorized to consider disciplinary initiated against military personnel, There shall be three kinds of courts-martial in each of the forces of the organized militia, (1) a general courts-martial: (2) a special courts-martial, and (3) a summary courts-martial. Each such courts-martial has designated jurisdictions but §130.21 of the Military Law provides that the jurisdiction of courts-martial not exclusive and provisions of Code of Military Justice conferring jurisdiction upon courts-martial shall not be construed as depriving provost courts or other military tribunals of concurrent jurisdiction in respect to offenders or offenses that by statute or by the law of war may be tried by such provost courts or other military tribunals.

The jurisdiction and authority of of courts martial are set out in Part 4 of the Code of Military Justice while §§130.59 - 130.72 of Part 9 of the Code sets out post-trial procedure and review of courts-martial.

** The Militia of the State of New York consists of the Organized Militia, the State Reserve List, the State Retired List and the Unorganized Militia. The Organized Militia is composed of the New York Army National Guard; the New York Air National Guard; the Inactive National Guard; the New York Naval Militia; the New York Guard whenever such a state force shall be duly organized, such additional forces as may be created by the governor and the Unorganized Militia.


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.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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