August 26, 2021

Vacating an arbitration award in a disciplinary action conducted pursuant a disciplinary procedure set out in a collective bargaining agreement

The Appellate Division reversed, on the law, without costs, a Supreme Court ruling that granted an application filed by New York State Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA] to confirm an arbitration award and [2] granted the motion of the New York State Department of Corrections and Community Supervision's[Corrections] to dismiss [NYSCOPBA's] appeal and remitted the matter to the arbitrator "for further proceedings not inconsistent with [its] decision."

NYSCOPBA is the bargaining representative for all correction officers employed by Corrections. A corrections officer [CO] represented by NYSCOPBA was served with a notice of discipline that sought to terminate CO's employment based on three charges — two related to alleged unauthorized telephone contacts with two former inmates, and one for allegedly making false statements made to investigators.

Pursuant to terms set out in the relevant collective bargaining agreement [CBA] between NYSCOPBA and the Corrections, NYSCOPBA filed a disciplinary grievance on behalf of the CO and demanded arbitration.

In response to NYSCOPBA motion to dismiss the disciplinary charges as untimely and not sufficiently particularized, the arbitrator reserved decision on the motion and proceed to conduct "a full disciplinary hearing." After completing the hearing, the arbitrator dismissed — based on the face of the notice itself, not on the evidence at the hearing — the two charges related to the phone calls. The arbitrator, however, found CO guilty of the charge relating to his false making statements and imposed a 75-day suspension without pay as a penalty.

NYSCOPBA then commenced a CPLR Article 75 proceeding seeking to confirm the arbitration award. Corrections cross-moved to vacate the award with respect to the  two charges dismissed by the arbitrator concerning the alleged unauthorized telephone contacts. Supreme Court denied Correction's cross-motion and granted NYSCOPBA's petition, confirming the award. Corrections appealed.

The Appellate Division commenced it consideration of Correction's appeal by observing:

1. Although courts are generally bound by an arbitrator's factual findings and interpretation of the parties' contract, a court may vacate an award that "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power;"

2. In view of these narrowly circumscribed exceptions, "courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact"; and

3. If the arbitrator imposes requirements "not supported by any reasonable construction of the CBA, then the arbitrator's construction in effect makes a new contract for the parties and exceeds his or her authority."

Here, said the court, the CBA limits the role and authority of the arbitrator, as it provides that [1] disciplinary arbitrators shall confine themselves to the issues of guilt or innocence and the appropriate penalty; [2] directs that "[d]isciplinary arbitrators shall neither add to, subtract from nor modify the provisions of [the CBA]"; [3] sets a time limitation for disciplinary action"; and [4] provides that "[t]he conduct for which discipline is being imposed and the penalty proposed shall be specified in the notice."

Because it was undisputed that the allegations in charge 1 and portions of charge 2 fall outside the CBA's nine-month time limitation, for those allegations to be timely Corrections was required to invoke the exception that the alleged misconduct "would constitute a crime." 

The arbitrator determined that the bare identification and quoting of a criminal statute did not meet the requirements of "due process" — what the arbitrator defined as, "in essence[,] an underlying requirement that the charge that a crime has been committed must be fully communicated to the maximum possible degree in the 'charging instrument' (here, the [notice of discipline]) at the outset of the [p]roceedings" — as the notice did not provide factual details relating CO's conduct to each element of the cited crime. 

"On that basis," the arbitrator concluded that the notice of discipline did not satisfy the CBA's time exception.

However, the Appellate Division found that "the CBA does not refer to 'due process,' nor does it require that each element of the underlying crime be established in the notice." Citing People v Iannone, 45 NY2d 589, in which the Court of Appeals held that, "[w]hen indicting for statutory crimes, it is usually sufficient to charge the language of the statute unless that language is too broad," the Appellate Division opined that "by requiring [Corrections] to prove the underlying crime in the notice to support [applying] the CBA's time exception," the arbitrator essentially added a term to the CBA and, thus, exceeded his authority.

As the arbitrator dismissed the first two charges as untimely based on what he perceived to be deficiencies in the notice of discipline, he never determined whether Corrections met its burden of proof based on the hearing evidence. Accordingly, the Appellate Division remitted the matter to the arbitrator to determine whether charge 1 and any of the allegations under charge 2 were timely, i.e., "whether [Corrections] proved at the hearing that [CO's] conduct would constitute the crime of official misconduct" within the meaning of the State's Penal Law §195.00.

Further, said the court, "[e]ven if the arbitrator determines that those allegations are untimely ... some of the allegations in charge 2 occurred less than nine months prior to service of the notice of discipline; thus, the arbitrator must address those timely allegations.

As the arbitrator also based his dismissal of the first two charges on NYSCOPBA's argument that the charges lacked particularization with respect to the date of the alleged misconduct, the Appellate Division opined that, in general, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him [or her] and to allow for the preparation of an adequate defense." Here, however, the CBA requires somewhat more, a "detailed description" of the misconduct with "references to dates." The arbitrator found it significant that neither charge at issue "specif[ied] the specific dates on which the alleged wrongful acts occurred, nor any other substantive facts relevant to the occurrences of those phone conversations."

NYSCOPBA, said the court, focused their challenge to the notice on the absence of specific dates for each phone call. In the words of the Appellate Division, "[B]oth charges at issue listed dates, albeit as date ranges. Nothing in the CBA required respondent to list each phone call as a separate charge, nor to list the exact date of each call, especially for a continuing pattern of misconduct.... Charge 1 stated a range of only three days. For the second charge, the notice stated that [CO] engaged in 36 unapproved phone calls over a time period spanning six months. This comports with the CBA's requirement of "a detailed description of the alleged acts and conduct including references to dates" (emphasis in the decision).

Thus the Appellate Division concluded that the arbitrator modified the CBA and exceeded his authority by dismissing the first two charges as facially deficient due to an alleged lack of particularization in the notice of discipline. Rather, said the court, "the arbitrator should have rendered a determination as to [CO's] guilt based on the evidence presented at the hearing."

Accordingly, because the arbitrator exceeded his authority, the Appellate Division vacated the portion of the arbitration award dismissing the first two charges.

Click HERE to access the Appellate Division's ruling.

CAUTION

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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 in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.