A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement

A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement
Raymond Muller v Government Printing Office, United States Court of Appeals, Federal Circuit, No. 2015–3032

Raymond Muller asked his union to have his grievance against his employer, the Government Printing Office [GPO], submitted to arbitration. The relevant contract provision stated that if the grievance was not resolved to the satisfaction of the parties at the agency level “Arbitration must be invoked within 30 days.” The agreement further provided that “[t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit.”

As the grievance was not resolved at the agency level, a timely demand for arbitration was submitted to GPO. GPO referred the matter to arbitration pursuant provisions set out in the relevant collective bargaining agreement. GPO, four months to the day from the date that arbitration had been invoked, wrote to the union and the arbitrator “to ask that the arbitration be closed for failure to comply with the four-month deadline.” After reviewing briefs submitted by the parties the arbitrator concluded that “[T]here is ample evidence in the record, although none is required contractually, that the union … was the direct and primary cause for the failure of the parties to meet the four-month requirement” and dismissed Muller’s grievance as “not arbitrable,” as the “four-month deadline” for holding a hearing had passed.” The arbitrator's decision was appealed and considered by the U.S. Circuit Court of Appeals, Federal Circuit.

The court unanimously disagreed with the arbitrator's determination, explaining that the relevant contractual provision did not require dismissal of the grievance in the event of noncompliance with the four-month deadline. The court characterized the deadline as “merely a nonbinding housekeeping rule” to encourage timely arbitration and applies to both the arbitrator and the parties involved. Nor, said the court, there was no “past practice” in place requiring dismissal under the circumstances of this case.

The Circuit Court noted that “[c]ourts should be careful not to ‘judicialize’ the arbitration process.” Arbitration typically envisions that each case be decided on its own under the controlling contract as “t]he collective bargaining agreement is the primary tool used in the arbitration process.” Thus, said the Circuit Court, [i]t is therefore up to the negotiating parties to impose any internal deadlines on the arbitration process.” Further, the commented the court, in this instance “it is not within the union's power to ensure compliance with the four-month deadline; and the [relevant contract] provision does not specify dismissal as a sanction for failure to comply with the deadline.”

The court also noted that the contract provides that a “failure to meet a deadline will result in the grievance moving to the next step.” Pointing out that the “next step after a hearing” is the decision by the arbitrator, the Court of Appeals characterized such a result as “nonsensical” and that GPO did not contend that “failure to meet the four-month deadline should result in a decision without a hearing.”

Ruling that there was no basis in the text of the master agreement to support the arbitrator's conclusion that noncompliance with the four-month hearing deadline automatically invalidated Muller's claim, the court remanded the matter for a determination of of Muller’s grievance on its merits.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/us-federal-circuit/1723086.html

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Weinstein v New York State Workers' Compensation Bd., 2016 NY Slip Op 00505, Appellate Division, Second Department

Robert S. Weinstein, a Workers' Compensation Law Judge, was served with a notice of discipline by which the respondent sought to terminate his employment based on three charges of insubordination, two charges of misconduct/incompetence, and three charges of misconduct. The arbitrator found that the Workers’ Compensation Board [Board] had proven seven out of the eight charges and that the penalty of termination was proper.

Weinstein filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court granted the Board's motion to dismiss the petition and, in effect, denied Weinstein’s petition and dismissed the proceeding. Weinstein appealed, contending the penalty imposed, termination, “was unduly harsh and disproportionate.”

The Appellate Division observed that although “the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated,” where an arbitration is compulsory, as is here the case, judicial review under CPLR Article 75 requires that the award be in accord with due process. Citing Russo v NYC Department of Education, 25 NY3d 946, the court rejected the Board’s contention to the contrary and held that “the excessiveness of a penalty is a basis upon which an arbitration award may be vacated.

The court ruled that in this instance “the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness, citing the so-called Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the arbitrator rationally determined, based on the evidence presented, that Weinstein was insubordinate and failed to complete his assignments in a timely manner, despite several remedial measures undertaken by his employer, and dismissed his appeal.

The decision is posed on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00505.htm

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The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Moser v Tawil, 2016 NY Slip Op 00501, Appellate Division, Second Department

Robert T. Moser was employed by the City of Middletown as a part-time code enforcement officer. On April 27, 2012, the Mayor of Middletown unilaterally decided to abolish that position for economic reasons. Moser filed a CPLR Article 78 petition seeking a court order annulling the Mayor’s decision that resulted in his termination and directing his reinstatement to his former position with back salary.

Following a hearing, Supreme Court determined that the Mayor had exceeded his authority under the Middletown City Charter and granted Moser’s petition.

The Appellate Division commenced its review of Mayor’s appeal by noting that “The questions that may be raised in a CPLR Article 78 proceeding include "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

Finding that Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer, the Appellate Division explained that the City Charter “grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown by providing that it "shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees."

While the City Charter authorizes the Mayor, with certain limitations, to suspend an employee for cause, there is nothing in the City Charter granting the Mayor authority to unilaterally abolish civil service employment positions.

Sometimes referred as the Doctrine of Legislative Equivalency, the court said that the general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body. Accordingly, “having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them.”

The Doctrine of Legislative Equivalency, applied by the Court of Appeals in deciding the Torre v County of Nassau, 86 NY2d 421, sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00501.htm