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February 25, 2019

Disciplinary settlement agreements are typically subject to "narrow construction"

Disciplinary settlement agreements are typically subject to "narrow construction"
Marine Engineers' Beneficial Assn. v City of New York, 2019 NY Slip Op 01327, Appellate Division, First Department

The term "narrow construction" used to describe the application of a law, rule or regulation based on a literal and narrow interpretation of the text of the provision. Marine Engineer's is an example of "narrow construction" in the interpretation and application of the terms and conditions set out in  a disciplinary settlement agreements.

A Chief Marine Engineer [CME] of a Staten Island ferryboat was found asleep on duty during his shift. The CME's union and the City of New York [City] entered into an agreement to settle the matter in which the CME agreed to a 30-day suspension without pay "in full satisfaction of the disciplinary matter."

Upon returning to work following the suspension without pay, the CME was told that he could not work as a Chief Marine Engineer aboard vessels in service and could not bid for job assignments in his title. Although CME retained his CME title and hourly rate of pay for regular and overtime duty, the number of overtime hours available to him with respect to his assignments in the lower title to which he was permitted to bid was limited. CME objected to the City's action and ultimately the union submitted the matter to arbitration.

The arbitrator found that the City's restricting CME's bidding rights after his suspension constituted a de factodemotion and violated the section of the controlling collective bargaining agreement that provided as follows:

"Per annum Licensed Officers shall have the right to bid for jobs on the basis of seniority. Such bid will be permanent for one year. Changes may be made before the expiration of the year by mutual consent of the Licensed Officers, subject to prior approval by the Employer. Such approval shall not be unreasonably withheld."

City filed an appeal pursuant to CPLR Article 75 seeking an order vacating the arbitration award. Supreme Court denied the City's motion and granted the union's motion to confirm the award. Subsequently the Appellate Division unanimously affirmed the Supreme Court's rulings.

The City had contended that the arbitration award, which found that the CME had the right to bid and work as a full-duty CME without regard to the incident that gave rise to the settlement agreement, violated public policy with respect to maritime passenger safety.

The Appellate Division, citing Matter of Local 333, United Mar. Div., Intl. Longshoreman's Assn., AFL-CIO v New York City Dept. of Transp., 35 AD3d 211, rejected this argument, explaining that the City's safety concerns, "albeit important, are not 'embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator.'"

The court also rejected City's claim that its action was consistent with its "management prerogative pursuant to New York City Administrative Code §12-307(b) as well as its reliance on 18 USC §1115 [Misconduct or neglect of ship officers], explaining neither could be read "to bar or add to the actions taken by the parties' representatives to resolve this disciplinary matter."

Another decision illustrating limitations imposed by a disciplinary settlement agreement with respect to action by the appointing authority is Taylor v Cass, 122 A.D.2d 885.

The disciplinary settlement agreement controlling in Taylor provided that the appointing authority could summarily terminate the employee without a disciplinary hearing if, in the opinion of Taylor's superior, Taylor's "job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during this six month 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 Taylor had been intoxicated on the job listed among the reasons alleged for his being summarily terminated from his position by the appointing authority.

Taylor challenged his termination and won reinstatement with back salary. The Appellate Division said that Taylor's dismissal without notice and hearing was improper because he had not been terminated for the sole reason specified in the disciplinary settlement agreement - "intoxication on the job during the next six months."

The CME's decision is posted on the Internet at:

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