Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Civil Serv. Employees Assn., Inc. v Nassau Health Care Corp., 2014 NY Slip Op 01704, Appellate Division, Second Department

CSEA alleged that Nassau Health Care Corporation [NHCC] had violated the terms of a collective bargaining agreement [CBA] when it deemed certain employees reinstated to their former positions as "new" employees for purposes of determining their eligibility for health benefits, their seniority status, and their rate of leave accruals.*

NHCC and CSEA proceeded to nonbinding arbitration. The arbitrator issued an advisory award sustaining CSEA’s grievances. NHCC rejected the advisory award and CSEA sued, alleging breach of contract and sought declaratory relief and a court order directing NHCC to compensate the employees for expenses incurred by reason of such alleged violations. Supreme Court granted CSEA’s motion for summary judgment and NHCC appealed.

The Appellate Division modified the Supreme Court’s order, finding that NHCC had not violated the CBA with respect to its conduct towards former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

The court said that the CBA was clear and unambiguous with respect to treatment of those former employees reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

In contrast, the Appellate Division held that the CBA was not clear and was ambiguous with respect to those employees reinstated to a full-time position after one year or more after the interruption of their full-time employment with NHCC but less than a full year interrupted full-time service when periods of part-time employment were taken into account. Resolution of the ambiguity, said the court, is for the “trier of the fact,” remanding this issue to Supreme Court for its further consideration.

The court explained that "When a contract, read as a whole to determine its purpose and intent, plainly manifests the intent of the parties, relief may be granted by way of summary judgment.… Where, however, the contractual provision relied upon is ambiguous, the resolution of the ambiguity is for the trier of fact” to resolve.

Here, said the court, the CBA was clear and unambiguous with respect to treatment of former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period of their layoff. NHCC demonstrated prima facie that these employees were treated in conformity with those contractual provisions said the Appellate Division.

Thus the Appellate Division ruled that Supreme Court was incorrect in denying NHCC's motion for summary judgment declaring that it did not violate the CBA with respect to its treatment of employee absent from full time employment for one year or longer without having had any intervening part-time employment with NHCC.

The Appellate Division held that the CBA was not so clear and unambiguous with respect to NHCC's treatment of employees reinstated to a full-time position one year or more after being laid-off  but who had been employed by NHCC part-time during their absence following their laid-off.

Accordingly, the Appellate Division held that Supreme Court properly denied NHCC's motion seeking summary judgment in its favor with respect to employee having intervening part-time employment with NHCC but erred in granting CSEA's motion for summary judgment with respect to these employees. The issue was remitted to the Supreme Court for further proceedings with respect to those individuals employed by NHCC on a part-time basis during while absent from full-time employment by NHCC for one year or longer.

* The Appellate Division distinguished between to groups of employee: one group consisted of employees absent from their full time employment for more than one year and a second group of employees consisting of employees absent from their full time employment for more than one year but who had been employed by NHCC on a part-time basis during their absence from full-time employment with NHCC.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01704.htm
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Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct

Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct

2014 NY Slip Op 01813, Appellate Division, First Department

2014 NY Slip Op 01814, Appellate Division, First Department

In both of these cases tenured teachers were terminated after a disciplinary arbitrator found them guilty of allegedly "engaging in what appeared to be sexually inappropriate behavior with a colleague" while on school property in an “unofficial capacity.”

Supreme Court sustained the arbitrator’s findings of misconduct but remanded the matter for a new hearing and the imposition of a lesser penalty. The Appellate Division, however, modified the Supreme Court’s decision “on the law” by [1] reinstating the findings of misconduct but vacated that part of the order directing a new hearing and [2] remanding the matter for the imposition of a lesser penalties.

Explaining that where the parties are subjected to compulsory arbitration, the arbitration award must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." Further said the court, “[a] hearing officer's determinations of credibility, however, are largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures - all the nuances of speech and manner that combine to form an impression of either candor or deception."

The Appellate Division found that Supreme Court “erred in substituting its judgment” for that of the hearing officer and the arbitrator's findings of misconduct “was supported by adequate evidence.”

 

The court, however, agreed with Supreme Court that the penalty of termination of employment was shockingly disproportionate to the misconduct of the respective employees. A result is shocking to one's sense of fairness, said the court, “if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals.” 

Another consideration in fixing an appropriate penalty: would be the prospect of deterrence of the individual or of others in like situations.

Before the incident, the court noted, the teachers involved had made many positive contributions to the school and had an unblemished disciplinary records.

Among the circumstances that could serve in mitigating the disciplinary penalty imposed on an employee, in this instance termination, cited by the court were the following:

1. The employee’s actions were not premeditated and the employee had a spotless record for five years.

2. The employee’s behavior demonstrated a lapse in judgment in the absence of evidence that the incident was anything but a one-time mistake.

3. That, with respect to an educator, the conduct did not involve some form of romantic involvement or other inappropriate conduct with a student, but rather appeared to be consensual sexual conduct with an adult colleague that was not in and of itself either criminal or otherwise improper.

4. The absence of any indication in the record that the educator's conduct will affect his or her ability to teach or that he or she intended to inflict any damage on any student.

5. The tenured educator had an unblemished disciplinary record and consistently satisfactory performance ratings.

The Appellate Division, in remanding the matter for the imposition of lesser penalties, commented that “While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

N.B. James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling.

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Mr. Beyer's article is posted on the Internet at:http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01813.htm

and

http://www.nycourts.gov/reporter/3dseries/2014/2014_01814.htm

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