Determining if a grievance involving a provision in a collective bargaining agreement is subject to arbitration

Supreme Court denied the petitioner's [Employer] CPLR §7503 application to permanently stay arbitration of a grievance between the Employer and the employee organization [Union] initiated pursuant to the collective bargaining agreement [CBA] between the parties. The grievance involved determining the correct amount of the employees' contributions for health insurance coverage. 

Although the Employer contended the grievance was not subject to arbitration, Supreme Court held that the grievance was arbitrable. Employer appealed the ruling.

Observing that the court's role in reviewing applications to stay arbitration is limited, the Appellate Division explained that the threshold issue is to determine whether the subject matter of the grievance is arbitrable. This, said the court, involves a two-part inquiry into whether there is [1] "any statutory, constitutional or public policy prohibition against arbitration of the grievance" and if no such prohibition is found, whether [2] the parties in fact "agreed to arbitrate the particular dispute" by examining the relevant collective bargaining agreement.

Noting that the Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the court said that its inquiry distills to whether the parties agreed to arbitrate this particular grievance.

In the words of the Appellate Division, "[if] the CBA contains a broad arbitration clause, 'an agreement to arbitrate will be found by the court as long as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'".

Citing the relevant provisions set out in the CBA, the Appellate Division opined that as the grievance involves health insurance benefits, which are an employee benefit and an express provision of the CBA, the "grievance falls within the scope of disputes that the parties agreed to submit to arbitration." Further, the fact that the substantive clauses of the contract might not support the grievances is irrelevant on the threshold question of arbitrability and "it] is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Addressing the Employer additional argument in support of dismissing the Union's Article 75 petition contending that the grievance was untimely filed, the Appellate Division said "[A]ny argument concerning compliance with the grievance process, including any time limitations thereunder, is likewise a matter for the arbitrator to decide".

Accordingly, the Appellate Division concluded that Supreme Court properly denied the Employer's application to permanently stay arbitration.

Click HERE to access the Appellate Division's decision.

 

Hearing officer recommends dismissal of disciplinary charges after finding the employee did not used his position with his employer for personal or financial gain

New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Faye Lewis recommended that disciplinary charges against a Human Resources Administration [HRA] employee [Respondent] be dismissed as HRA failed to establish that the Respondent used his position in the agency for personal or financial gain.

HRA contended that the Respondent, a case manager assigned to a center in the Bronx, violated HRA rules and the City Charter by asking former colleagues to give his phone number to public assistance clients who might be interested in renting an apartment from him.

ALJ Lewis determined that HRA employees are permitted to rent property that they own or manage to public assistance recipients if they first submit a questionnaire for approval and that they do not work at the center providing the client’s benefits.

Respondent, said Judge Lewis, followed that procedure in that Respondent did not work at the center providing the client's benefit, and HRA had approved Respondent's request.

In addition, the ALJ noted that Respondent presented "unrefuted evidence that landlords who are not HRA employees have regular contact with case managers and could tell a case manager that they have available apartments to rent."

Accordingly, the Administrative Law Judge concluded that HRA did not establish that Respondent had violated its rules, nor those set out in the City Charter with respect to the rental of the property in question, that triggered the disciplinary charges served on the Respondent.

To access the text of Judge Lewis' decision, click HERE!

 

Custodian's reliance on a prohibition in a federal regulation to withhold certain documents within the ambit of the Freedom of Information Law held misplaced

The custodian of certain documents sought pursuant to the New York State Freedom of Information Law [FOIL] denied the access to the documents concerning an accident. The custodian argued that [1] "federal law prohibited [the custodian] from providing the requested documents" and [2] the "law enforcement exemption" applied in this instance.

Petitioner [Plaintiff] then initiated a CPLR Article 78 seeking a court order annulling the agency's decision. Supreme Court granted Plaintiff's application and the agency appealed. The Appellate Division sustained the lower court's ruling.

Conceding that Public Officers Law §87(2)(a) does permit the custodian of records sought pursuant to FOIL to deny access to records if they "are specifically exempted from disclosure by state or federal statute," the Appellate Division opined out that "no federal statute exists prohibiting [the custodians] from releasing [the] requested documents."

The court explained that although the federal National Transportation Safety Board had promulgated a regulation* that prohibits parties to its investigations "from releasing information obtained during an investigation at any time prior to the [National Transportation Safety Board's] public release of information ... a regulation is not a statute and, therefore, does not fall within the ambit of this narrowly construed exemption," citing Brownstone Publs. v New York City Department of Finance, 150 AD2d 185, leave to appeal denied, 75 NY2d 791.

Addressing the agency's alternative justification for its determination, its withholding the documents demanded pursuant to FOIL's "law enforcement exemption," the Appellate Division noted that Public Officers Law §87(2)(e)(i) exempts from disclosure those records, or portions thereof, that "are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings."

However, said the court, in order to trigger the law enforcement exemption, the custodian of the record demanded is required to articulate a factual basis "identify[ing] the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents."

Instead, said the Appellate Division, the agency "in conclusory and speculative fashion, averred that the exemption justified denial of access to the requested records, without providing factual assertions from anyone with personal knowledge demonstrating that the requested records were actually compiled for law enforcement purposes, either generally or specifically, in connection with the investigation of this accident."

* An Overview of Federal Regulations and the Rulemaking Process prepared by the Congressional Research Service is posted on the Internet at https://fas.org/sgp/crs/misc/IF10003.pdf.

Click HERE to access the Appellate Division's decision.