In processing a grievance all procedural steps must be satisfied

In processing a grievance all procedural steps must be satisfied

Brown v Nassau County, 288 AD2d 216

The lesson in the Brown case: failure to follow the steps set out in a collective bargaining agreement's grievance procedure in a timely fashion may prove fatal to seeking further relief.

Larry Brown filed an out-of-title work grievance. When he and his union attempted to appeal the Step 3 determination of the Nassau County Office of Labor Relations [OLR], OLR rejected his grievance, saying that it was untimely. The Appellate Division agreed.

Brown's grievance was filed in accordance with a “five-step grievance procedure” set out in the collective bargaining agreement. OLR denied Brown's grievance at Step three and it appears that neither Brown nor the union proceeded to a Step four “advisory appeal” as set out Section 23-1.4 of the agreement.

According to the decision, the union made an untimely request that the County “schedule ... an arbitration date” following the County's unwillingness to stipulate to settle the dispute in accordance with the recommendation of a mediator.

The court noted that there was no proof that the County, in contrast to Brown and the union, the parties aggrieved by the Step 3 determination, was responsible for initiating the procedure at Step Four, or for the scheduling of the arbitration procedures.

Brown and the union sought a court order to compel arbitration of the grievance. The Appellate Division said that since there is no evidence that either Brown or the union ever timely “proceed[ed] to an advisory appeal” to either of the two alternative arbitral forums described in Section 23-1.4 of the parties' agreement, it agreed with the Supreme Court that, in light of this failure to complete the five-step grievance procedure, neither Brown nor the union could sue the County directly.

The simple answer: Had either Brown or the union followed the time requirement for perfecting the appeal to the next step, Step 4, the matter would have been subject to arbitration as permitted under the agreement.

Brown and the union also contended that they should not have been required to complete all five steps of the grievance procedure, because proceeding through all such steps would have been futile. The Appellate Division rejected this argument as being “without merit.”

Rebutting employer's defense to charges of unlawful discrimination

Rebutting employer's defense to charges of unlawful discrimination

Wallace v Methodist Hospital System, CA5, 271 F.3d 212

In the Wallace case, the Circuit Court of Appeals, Fifth Circuit, points out that an individual charging his or her employer with unlawful discrimination “must present facts to rebut each and every legitimate non-discriminatory reason advanced by [her employer] in order to survive [a motion for] summary judgment”.

Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

Frequently an individual is able to establish a prima facie case of discrimination in challenging an adverse employment decision by introducing circumstantial evidence sufficient to raise a presumption of discrimination.

Once this is done, the employer is charged with the burden of producing a legitimate nondiscriminatory reason for the adverse employment decision. If the employer provides a legitimate nondiscriminatory reason for its action, the presumption of discrimination is defeated.

It then becomes the individual's burden to persuade the trier of fact that he or she was, in fact, the victim of unlawful discrimination by showing by a preponderance of the evidence that the employer intentionally discriminated against him or her because of his or her protected status.

In the Wallace case, the Hospital did not dispute that a former nurse, Veronica A. Wallace, had established a prima facie case of discrimination. However, in response to that prima facie case, the Hospital offered two nondiscriminatory reasons for discharging Wallace.

According to the decision, the Hospital contended that Wallace had violated two of its written rules and the violation of either constituted grounds for her immediate termination under its written policies without regard to her past performance:

(1) the employee performed a procedure without receiving a physician's order even though Hospital's written policies required an order; and

(2) the employee falsified medical records.

Although Wallace admitted that she had violated both policies, she argued that she was subject to disparate disciplinary treatment, and, therefore, Methodist's stated reasons were a pretext for discrimination.

According to the ruling, at the heart of whether the district court properly found that Wallace failed to demonstrate by substantial evidence that the Hospital's explanation of its actions constituted pretext.

While Wallace contended that she had provided evidence of disparate treatment, the district court held that the examples of disparate treatment she offered did not involve “similarly situated nurses.”

The Circuit Court sustained the lower court's findings, noting that it has held that in order for a plaintiff to show disparate treatment, Wallace had to demonstrate “that the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained,” citing Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177.

Put another way, the conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer.

Here, said the court, the Hospital had shown that “with but one exception,” the nurses to whom Wallace points are not similarly situated as “they had either acted under a doctor's orders, did not need a doctor's order for their actions, or no one in a supervisory capacity was aware of the nurse's actions.”

In addition, said the court, Wallace failed to rebut the second reason advanced by the Hospital in discharging her -- falsification of medical records.

Concluding that there was no legally sufficient basis that would allow a jury to decide that Wallace had been discharged because of discrimination, the Circuit Court sustained the lower court's dismissal of Wallace's complaint.

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration
Matter of Jandrew v County of Cortland, 2011 NY Slip Op 04143, Appellate Division, Third Department

Cortland County terminated Bryon Jandrew from his position with the County.

Jandrew filed a grievance under the relevant collective bargaining agreement [CBA]. The grievance was ultimately submitted to binding arbitration in accordance with the CBA, and an arbitrator was jointly elected by the parties.

Although Cortland contended that the subject matter of the grievance was not subject to arbitration, it did not seek a stay of arbitration and agreed to have the issue of arbitrability of Jandrew’s grievance determined by the arbitrator, as well as the issues of whether Jandrew was “properly terminated” and, if not “properly terminated,” the appropriate remedy.

The arbitrator ruled that Jandrew’s grievance was arbitrable. The arbitrator then determined that Jandrew’s termination was without cause and, as the remedy ruled that the County must reinstate him to his former position with back pay and benefits.

Although Courtland then notified Jandrew's attorney that it would appeal the award and that Jandrew “should not show up to work pending the appeal,” the County neither appealed the award nor did it move to vacate or modify it. Further, the County did not restore Jandrew to the payroll or provide back pay or benefits as directed by the arbitrator.

Jandrew then filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitrator's award, whereupon Courtland filed an answer to his petition and moved to vacate the award.

Supreme Court confirmed the arbitration award and the Appellate Division affirmed the lower court’s action.

The Appellate Division rejected Cortland’s argument that the award should be vacated because the arbitrator lacked the authority to decide the controversy. The court pointed out that “A party who actively participates in arbitration without seeking a stay pursuant to CPLR §7503(b) waives the right to a judicial determination of the arbitrability of the dispute,” citing Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Education of City School District of City of New York, 1 NY3d 72.

In this instance, said the court, although the County initially took the position that the grievance was not arbitrable, it thereafter joined in the selection of the arbitrator, fully participated in the arbitration proceeding and, most significantly, itself submitted to arbitration the issue of whether the grievance was arbitrable rather than "availing itself of all its reasonable judicial remedies."

Accordingly, the Appellate Division concluded that the County had waived its right to contest the arbitrator's power to decide the controversy.

Further, said the court, “By submitting [the grievance] to arbitration, [Cortland] ran the risk that the arbitrator would find the dispute covered under the CBA, as she did, and while a contrary determination certainly would have been reasonable on the present record, it is not for us to substitute our judgment for that of the arbitrator in this regard.”

Finally, the Appellate Division rejected Cortland’s contention that the arbitrator's award violated public policy. Although an arbitration award may be vacated on this “extremely narrow ground” it may be vacated only where a court can conclude, "'without engaging in any extended fact-finding or legal analysis' that a law 'prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that "the award itself violate[s] a well-defined constitutional, statutory or common law of this State"

Simply stated, said the court, “we fail to find any strong public policy precluding parties to a collective bargaining agreement from agreeing that the disciplining of employees for failure to maintain minimum job qualifications is to be submitted to and decided by an arbitrator.”

Similarly, with respect to the County’s argument that the award usurped the County Personnel Officer's power to set minimum job qualifications, the Appellate Division said “again the Cortland failed to point to any public policy that ‘prohibit[s], in an absolute sense,’ an employer from delegating to an arbitrator the authority to determine if an employee continues to meet the minimum qualifications of his or her position.”

Considering the adage that arbitrators "may do justice as they see it, applying their own sense of law and equity to the facts as they find them to be," the Appellate Division concluded that Cortland had not established that the arbitration award should be vacated for public policy reasons.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04143.htm