Prohibited subjects of arbitration

Prohibited subjects of arbitration
Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513
[Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, 26 AD3d 843, modified.]

Readers are undoubtedly familiar with the concept that there are “prohibited subjects of negotiations” within the meaning of the Taylor Law. In Chautauqua, the courts considered a corollary to this prohibition: prohibited subjects of arbitration.

Although the Taylor mandates that a public employer to bargain with employee organizations and to enter written agreements concerning the terms and conditions of employment and may agree to submit disputes to binding arbitration, this is permitted only in "the absence of 'plain and clear' prohibitions in statute or controlling decision[al] law, or restrictive public policy" (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268).

In determining if a dispute is arbitrable, a court applies a two-part test:

1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance?

If the court finds that there is no such prohibition, it must examine the collective bargaining agreement and then apply the second test:

2. Did the parties agreed to arbitrate the particular dispute?

If the court finds that the parties did not agree to submit the matter to arbitration, an arbitrator cannot act.

In other words, a court “must stay arbitration where it can conclude, upon examining the parties' contract and the relevant statute, "that the granting of any relief would violate public policy."

In Chautauqua, the Civil Service Employees Association (CSEA) demanded arbitration of grievances concerning layoffs and rights of displacement contained in Section 14.05 of the Collective Bargaining Agreement (CBA).

Section 14.05(a) provided as follows:

(a) For layoff purposes, an employee's seniority shall determine the order to be followed. In a department, the employee with the least seniority shall be the first to be laid off until the total number of employees required to decrease forces shall be reached. When all displacement possibilities are exhausted within the department, the employee shall have the right to displace in other departments.

In contrast, Civil Service Law Section 80, which addresses layoff affecting employees in the competitive class, provides, in relevant part, as follows:

Subdivision (1). Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.

Subdivision (4). Upon the abolition or reduction of positions in the service of a civil division, suspension or demotion shall be made from among employees holding the same or similar positions in the entire department or agency within which such abolition or reduction of positions occurs.

The County, based on the advice provided by the New York State Department of Civil Service, said that there was a conflict between section 14.05 of the CBA and Civil Service Law Section 80 with respect to layoff and refused to implement Section 14.05 of the CBA.*

CSEA demanded arbitration, contending that County violated Section 14.05 of the CBA by refusing to (1) lay off “the employees with the least seniority within a department until the total number of employees required to decrease forces in that Department was reached" and (2) allow "employees to displace employees in other departments after they exhausted displacement rights in their own departments."

Ultimately the County filed a petition pursuant to CPLR Article 75 proceeding seeking a permanent stay of arbitration as to all issues; CSEA opposed the petition and cross-moved to compel arbitration.

Supreme Court agreed with the County that a conflict existed between Civil Service Law and the CBA. Citing Matter of City of Plattsburgh (Local 788 & N.Y. Council 66, Am. Fedn. of State, County & Mun. Empls., AFL-CIO), 108 AD2d 1045, the court ruled that such a conflict was for a court, not an arbitrator, to resolve.** It granted the County's petition, in part, staying arbitration to the extent that CSEA's demands concerned claims or rights on behalf of employees who were in the Competitive Classification under the Civil Service Law. The court, however, concluded that because section 80(4) did not apply to noncompetitive or labor class employees, arbitration was permissible as to them and granted CSEA's cross motion to that extent.***

On an appeal to the Appellate Division unanimously reversed and granted CSEA's cross motion to compel arbitration in its entirety (See 26 AD3d 843) on the rationale that the perceived conflict was "merely theoretical,” concluding that the entire dispute was arbitrable because the statute did not contain " 'clear exclusionary language' " that precluded arbitration.

The Court of Appeals disagreed and modified the Appellate Division’s determination.

The high court said that it agreed with the County’s position that Section 80 first requires municipalities to decide which titles are essential and then protects the senior employees in such titles. In contrast, the County contended that CBA constituted “an impermissible intrusion on this statutory scheme” by protecting specific persons, rather than necessary positions, regardless of the municipality's operational needs or the community's service needs." As it stated in Honeoye Falls-Lima, 49 NY2d at 733, an appointing authority may not surrender through collective bargaining "a responsibility vested in the [appointing authority].” ****

Finding that under the CBA the County would retain no power to decide which positions to eliminate while Section 80(1) clearly indicates “that a public employer has a nondelegable discretion to determine—for reasons of economy, among others—what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public.” Once such an informed decision is made, Section 80(1) controls with respect to respect the seniority rights of its employees.

In the words of the Court of Appeals: “Succinctly put, under the CBA, seniority controls the abolition of positions; under the statute, seniority controls only after the employer decides which positions will be affected. This conflict is plainly irreconcilable.”

As to displacement rights, the court said that the nonarbitrability of this issue is less clear. Although Civil Service Law Section 80(4) provides that "[u]pon the abolition or reduction of positions . . . , suspension or demotion shall be made from among employees holding the same or similar positions in the entire department or agency within which such abolition or reduction of positions occurs," there is no explicit language in this subdivision that can be read to prohibit, in an absolute sense, a public employer from agreeing to permit employees to "bump" less senior employees in another department or division within the same layoff unit.

The court ruled that as public policy precludes arbitration of CSEA's primary grievance as to the layoff of certain employees, the County's petition to stay arbitration is granted. However, as there is no clear public policy precluding arbitration of CSEA's secondary grievance concerning displacement rights, CSEA's cross motion to compel arbitration was granted to that extent.

* The Department of Civil Service had advised the County that a collective bargaining agreement "may not alter the layoff units prescribed by Section 80 (4).”

** In Plattsburgh the collective bargaining agreement provided that in determining seniority in the event of demotions in connection with a layoff the "date hired" was to be used. Section 80 of the Civil Service Law provides that the date of "permanent appointment" controls. The Union sought to arbitrate the alleged contract violation. The City resisted and won an order prohibiting arbitration. The Appellate Division held that Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away. Accordingly, it was required to follow the provisions of Section 80 of the Civil Service Law notwithstanding any Taylor Agreement provision to the contrary.

*** Section 80-a applies to suspension or demotion upon the abolition or reduction of non-competitive class positions in the state service.

**** In Honeoye the issue was the maintenance of adequate classroom standards.
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Court permits tape-recorded statements provided by informants to be admitted into evidence in an administrative disciplinary hearing

Court permits tape-recorded statements provided by informants to be admitted into evidence in an administrative disciplinary hearing
Matter of Safir, 261 AD2d 153

A police officer was dismissed from his position after he was found guilty of conspiring with a “chop shop owner” to have at least one car stolen on his behalf. The evidence presented against the officer consisted of the testimony of the investigating officers and a tape recording containing statements by three informants.

The police officer challenged his termination, contending that the police commissioner’s determination was not supported by substantial evidence. The Appellate Division disagreed, holding that the record made during the disciplinary proceeding contained substantial evidence of the officer's guilt of the charges filed against him.

The court said that the tape-recorded statements, although hearsay, were properly received as part of the evidence against the officer. The decision noted that the reliability of the informants’ statements was corroborated by their internal consistency, by facts disclosed in the investigation and, in part, by the officer’s own testimony.
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Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate

Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate
Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit], 8 NY3d 465

Article V, Section 6 of New York State’s Constitution mandates that appointments and promotions in the civil service of the State and its political subdivisions "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."*

Although the Civil Service Law permits provisional appointments to positions in the competitive class, such appointments may be made only when there is no eligible list available for filling a vacancy in a competitive class, and then only for a maximum period of nine months (see Civil Service Law Section 65 [1], [2]).

Further, once a provisional employee has been in a position for one month, a civil service examination for the position must be scheduled and the provisional appointment to the position must end within two months of the date on which an appropriate eligible list is established.**

Finally a provisional appointee may be terminated "at any time without charges preferred, a statement of reasons given or a hearing held" so long as such termination is not for an unlawful reason.

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure

"Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees

"All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The City brought this action seeking to stay arbitration on public policy grounds. CSEA answered and cross-moved to compel arbitration.

The Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. The court, citing Koso v Greene, 260 NY 491, said that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.***

* The concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."

** There is a narrowly defined exception to this mandate that is only applicable when termination would "disrupt or impair essential public services."

*** Chief Judge Kaye (dissenting in part, in which Judge Ciparick concurred) said that “I agree that, as an arbitrator may not rely on the portion of the CBA that purports to grant tenure to provisional employees after one year of service (section 6.1-0), or on the section that prohibits termination until and unless the City appoints from an eligible list (section 6-1.1 [c]), a stay should be granted with regard to arbitration of section 6.1-0 and the first part of section 6-1.1. I conclude, however, that the second component of the bargained-for section 6-1.1 (c)—that a displaced provisional worker will be transferred into an open position for which he or she is qualified—is arbitrable.”
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Police officers claim they were subjected to punishment after failing to meet their "traffic ticket quotas"

Police officers claim they were subjected to punishment after failing to meet their "traffic ticket quotas"
Matarazzo v NYC Police Dept., 261 AD2d 142

Section 215-a of the State Labor Law makes it unlawful to penalize an individual who fails to meet any quota related to the issuance of tickets or summonses written within a specified period of time for traffic violations. The section further provides that any individual who is penalized may “cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of the Civil Service Law if no collective bargaining agreement exists.”

However, there is an exception that allows discipline for non-performance of duty in issuing traffic tickets, as long as the employer does not define non-performance as failure to fulfill a quota. In other words, an employer may take a “job action against an employee for failure to satisfactorily perform his or her job assignment of issuing tickets or summonses for traffic violations including parking, standing or stopping except that the employment productivity of such employee shall not be measured by such employee’s failure to satisfactorily comply with the requirement of any quota that the employer may establish.”

Louis Matarazzo and other New York City police officers put Section 215-a to the test when they sued the department for allegedly depriving the officers of meal breaks “as punishment for failure to meet a ticket writing quota.” They asked the court to compensate them for “lost meal time” and to issue a “cease and desist order.”

The Appellate Division dismissed the case because, it said, the officers failed to prove a critical element in their case -- they did not allege the existence of a quota as defined in Labor Law Section 215-a(2). The Appellate Division said that there was no indication of how many tickets the officers were required to write nor the period of time involved.

According to the decision, all that Matarazzo and the others showed was that “two supervising officers from two different precincts directed the individual petitioners to perform duties, during their meal breaks, that were likely to result in the issuance of tickets.” This, said the court, fails to support an inference that Matarazzo and other officers were punished for failure to meet a quota for issuing tickets in violation of Labor Law Section 215-a.
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Challenging a disciplinary determination based on allegations that it was not based on "substantial evidence"

Challenging a disciplinary determination based on allegations that it was not based on "substantial evidence"
Spry v Delaware Co., 253 AD2d 178

One of the most common of reasons set out in an appeal challenging an adverse Section 75 disciplinary determination is that the decision is not supported by substantial evidence. In deciding Spry, the Appellate Division considered the degree of precision with which the individual must identify his or her claims.

Spry was a ward clerk employed by the Delaware County Countryside Care Center. She was charged with numerous specifications of incompetence, insubordination, conduct unbecoming an employee, serious misconduct and unauthorized use of facility property. Following an 11-day administrative hearing conducted pursuant to Civil Service Law Section 75, Spry was found guilty of a great many of the charges.

Rejecting the hearing officer’s recommendation as to the penalty to be imposed, the appointing authority dismissed Spry from her position.

Spry appealed, contending that the findings of guilt were not supported by substantial evidence but her petition “made only conclusory assertions and stated no evidentiary facts in support of its claims.” A State Supreme Court judge dismissed her petition for “failure to state a cause of action.” The sole issue before the Appellate Division: does a petition in a CPLR Article 78 proceeding “raise” the substantial evidence issue within the meaning of CPLR 7804 (g) “by simply alleging that the challenged administrative determination is not supported by substantial evidence”?

First, the court noted that the hearing officer heard testimony over a period of 11 days, generating a record containing 2,664 pages of testimony and 300 pages of exhibits, and issued a 106-page decision finding petitioner guilty of over 100 separate specifications of misconduct.

Nonetheless, said the court, Spry’s petition failed to identify any of the challenged findings of misconduct or the manner in which the hearing evidence is claimed to have been deficient; rather, it merely alleges that “[t]he Hearing Officer’s Recommendation finding the Petitioner guilty of the charges is not supported by substantial evidence within the meaning and intent of CPLR 7803 (4)”.

The Appellate Division then commented that nothing in the record cites any legal authority for the proposition that in order to raise the substantial evidence issue, an Article 78 petition must set out the precise fashion in which the agency determination is not supported by substantial evidence. Accordingly, the court said that it would have to analyze the fundamental legal prerequisites of a petition within the context of the rather unique certiorari proceeding. It concluded that the absence of factual averments is not of itself fatal.

Next the Appellate Division observed that the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law (CPLR 7803 [4]). The court said that as is clearly the case here, an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Finally, the court said that in a certiorari proceeding there is essentially nothing to be “proved”. All evidence has already been adduced at the administrative hearing and findings made thereon. The petitioner’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

The bottom line: the claim that the administrative determination is not supported by substantial evidence did not “fail to state a cause of action” and was therefore it was incorrect for Supreme Court to dismiss Spry’s petition.
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