If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article

If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article
Fashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First Department

The relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a “Disciplinary Procedure."

The "Disciplinary Procedure" Article provided that "[n]o employee may be disciplined except for just cause." It further provided that a two-person disciplinary committee, consisting of one Institute representative and one Union representative would issue a recommendation as the disposition of the matter to FIT's President. Upon receiving the recommendation of the disciplinary committee the President "may take disciplinary action," which "may include, but is not limited to, reprimand . . ., suspen[sion] with or without pay, or termination."

The CAB further provided that "[i]f the President's decision is to terminate a part-time employee … the College and Union will refer the case to an outside arbitrator for final and binding determination." The Appellate Division then noted that although “the determination to terminate a part-time employee was expressly made subject to arbitration,” there was no similar provision making the President’s determination to suspend a part-time employee subject to arbitration.

When the Institute’s President suspended a “part-time employee,” Les Katz, without pay the Union filed a CBA grievance with FIT challenging the suspension and demanded the President’s decision be submitted to arbitration before the AAA. The Union alleged that the school had "[i]mproperly disciplined Les Katz in violation of the CBA." The Institute filed a petition pursuant to CPLR 7503(b) in Supreme Court seeking an order permanently staying the arbitration.

Supreme Court granted the stay and the Appellate Division sustained the lower court’s ruling that the Union’s claim was not subject to arbitration. The court explained that Katz was “cited, disciplined and suspended in accordance with the disciplinary procedures set forth” in the CBA’s Disciplinary Procedure Article, which “clearly govern in this case.” Significantly, the Disciplinary Procedure did not provide for arbitration of the President’s determination to suspend a part-time employee.

Addressing the union’s argument that the issue of whether Katz was properly suspended is subject to arbitration pursuant to the general Grievance Article, the Appellate Division said that “The reading of the contract proposed by the union, which would graft the procedures in [the ’Grievance’ provision Article] onto the disciplinary procedures in [the ‘Disciplinary Procedure’ Article] would render superfluous the provisions of [the Disciplinary Procedure Article that provided] for a limited right of arbitration for part-time employees only if they are terminated.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05329.htm

Concerning the so-called “Blue Wall of Silence”

Concerning the so-called “Blue Wall of Silence”
Diesel v Town of Lewisboro, CA2, 232 F.3d 92

While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept.

Not so in the Diesel case. Here a New York State Trooper complained that his civil rights were violated when fellow Troopers failed to accord him a "blue wall of silence."

New York State Trooper Dennis Diesel, sued other members of the New York Division of State Police. Diesel claimed that he had cooperated with an internal affairs investigation involving alleged misconduct by other State Police officers. He alleged that in a subsequent, unrelated incident, -- he was found early one morning passed out or asleep behind the wheel of an official car -- he suffered retaliation as a result of his having cooperated in the internal affairs investigation by being subjected to:

1. An "excessive, prolonged and overzealous investigation" of the incident;

2. The failure of the investigating officers to extend to him a form of "professional courtesy" he terms the "blue wall of silence"; and

3. The officers involved in investigating the incident violating his rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.

Addressing the "blue wall of silence" issue, the Circuit Court said:

1. A selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence";

2. The investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and

3. Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct.

Accordingly, the court held that Diesel was not, as a matter of law, entitled to any damages and reverse that portion of the district court's judgment in favor of Diesel.

* The phrase "Blue Wall of Silence" has been popularly used to characterized the alleged unity exhibited by law enforcement personnel to limit or minimize their co-operation in an investigation where the target of the investigation is a police or other law enforcement official.

Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action

Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action
Pierino v Brown, 281 A.D.2d 960

The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding.

John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.

The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.

Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.

The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.

What was the basis for the court's action?

The Appellate Division ruled that the issue of "substantial evidence" that formed the basis of Pierino's appeal is raised only if an administrative hearing is "required by law." In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:

“Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate."

Consequently, said the Appellate Division, "the proceeding was erroneously transferred to this Court.”

Absence during a probationary period

Absence during a probationary period
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538

Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.

During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.

Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.

Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.

The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?

Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.

The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.

Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.

“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*

As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.

Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.

Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.

* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”

Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf

Reporting threats of violence by a disgruntled employee to the police

Reporting threats of violence by a disgruntled employee to the police
Aviles v Cornell Forge Co., CA7, 241 F.3d 589

Violence at the work site is a growing concern to both employers and employees.

The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.

These were the essential elements alleged in the Aviles case.

Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."

The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.

According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.

In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.

The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.