A SUNY community college and its sponsoring county, [Employers] are parties to a collective bargaining agreement [CBA] with an Employee Organization [Union] representing members of the community college's faculty.
When Employers served disciplinary charges on one of Union's members, a college professor, and suspended the professor without pay while such charges were pending, the Union filed a grievance alleging that the suspension without pay violated certain terms set out in the CBA*.
The grievance was denied by the Employers and the Union filed a demand to submit the matter to arbitration.
Following an arbitration hearing, the arbitrator found that the matter was arbitrable and further determined that Employers were required, under the terms of the CBA, to continue to pay the professor during the period of the suspension. Employers then commenced a CPLR Article 75 action seeking to vacate the arbitrator's decisions and award.
Supreme Court denied the petition and Employers appealed the Supreme Court's ruling to the Appellate Division. The Appellate Division opined that the following were the relevant Articles of the CBA concerning the issues to be resolved by the arbitrator:
1. Article 3 which stated that Employers reserve the powers and rights conferred upon them by federal and state law, and the exercise of such powers and rights shall "be limited only by the specific and expressed terms of [the CBA]";
2. Article 12 which sets out a four-step grievance procedure, culminating in arbitration as the last step in that process; and
3. Article 45 which, in general, provides for the procedure for bringing disciplinary charges against a faculty member and section E of Article 45, in particular, which provides that "[p]ending the hearing and determination of charges, [Employers] may suspend the [faculty member]".
With respect to Employers' contention "that the dispute was not arbitrable because Union failed to follow the first two steps of the grievance procedure in that Union did not provide notice of its grievance to the proper individuals within the mandated time frames", the Appellate Division noted that "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrator, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the [procedural] limitations a condition precedent to arbitration".
As the CBA contains no express provision requiring strict compliance with the grievance procedure as a prerequisite to arbitration, the question of whether Union complied with that procedure — in particular, its notice requirements and time limitations — was for the arbitrator to resolve. The arbitrator found that, despite the lack of strict compliance with the first two steps of the grievance procedure, Employers had actual notice of Union's grievance well before the deadline for filing it and therefore the matter was arbitrable. The Appellate Division said that it found "no basis to disturb this conclusion" by the arbitrator.
Addressing Employers' claim that the arbitrator went beyond the powers granted to the arbitrator by Articles 3 and 12 of the CBA in evaluating Union's compliance with the grievance procedure, the Appellate Division ruled that "this contention is without merit as Employers have made no showing that the arbitrator's determination in this regard violated public policy, was irrational or exceeded a specifically enumerated limitation on his power."
As to the Employers' contention that the arbitrator misinterpreted the suspension provision contained in Article 45, §E of the CBA, the Appellate Division opined that "[a]n arbitrator is charged with the interpretation and application of the parties' agreement and courts are obligated to give deference to the decision of the arbitrator." Accordingly, "[i]f the contract is reasonably susceptible to different conclusions, including the one given by the arbitrator, courts will not disturb the award."
With respect to the question of whether suspension of an employee during the pendency of disciplinary charges should be with or without pay, the Appellate Division commented that in view of ambiguity of §E of Article 45 concerning this issue the arbitrator looked to another provision of the CBA prohibiting termination of an employee before arbitration and reasoned that suspension without pay prior to arbitration would be tantamount to termination.
In addition, the Appellate Division's decision reports that the arbitrator also relied on a parol evidence of previous instance in which Employers, pursuant to the same contract language at issue in this case, provided full pay to an employee who had been suspended on similar charges.** Inasmuch as this determination, in the view of the Appellate Division, "was not irrational", it declined to substitute its judgment for that of the arbitrator.
Accordingly, the arbitrator's order was affirmed by the Appellate Division, with costs.
* The merits of the underlying disciplinary charges were addressed in a separate proceeding and are not the subject of this appeal.
** Citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, the Appellate Division's decision held the arbitrator was free to consider "parol evidence" concerning a past practice given the ambiguity the arbitrator found in Article 45, §E of the CBA.