Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Matter of City of Binghamton v Binghamton Police Benevolent Assn., Inc., 2011 NY Slip Op 02109, Appellate Division, Third Department

When the Binghamton chief of police instituted new rules concerning the use of sick leave and subsequently counseled a police officer about an alleged pattern of suspected sick leave abuse and the need to provide a physician’s notes for all future sick leave absences, the Police Benevolent Association filed a grievance alleging a violation of the collective bargaining agreement between the Association and the City. In addition, the Association contended that the new policy constituted “departure from past practices.”

The grievance was denied by both the police chief and a representative of the mayor. The City, in response to the Association demand to submit the grievance to arbitration, filed a petition pursuant to Article 75 of the CPLR seeking a stay of arbitration. Supreme Court denied the petition and the City appealed.

The Appellate Division affirmed the Supreme Court’s determination, noting that the sole issue to be resolved was whether the parties to the CBA agreed to refer disputes in this specific area to arbitration.

In such situation, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

As the parties' broad agreement to arbitrate provided that "[a]ny grievance or dispute which may arise between the parties involving the application, meaning, or interpretation of this [a]greement," the Appellate Division ruled that the subject matter of the dispute bears a reasonable relationship to the articulated contract provisions and, therefore, it is for an arbitrator to decide in the first instance whether the precise scope of those provisions covers the issues presented in the Association’s grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02109.htm

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Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Department of Corrections v Johnson, OATH Index #1303/11

A New York City correction officer who tested positive for illegal drugs argued that the results were obtained in violation of her union and privacy rights. In essence, the officer challenged the legality of a second drug test administered to her after she tested positive in an earlier test on the grounds that the test violated the office’s right to union representation under §75 of the Civil Service Law and her right to be free from unreasonable searches under the Fourth Amendment.

OATH Administrative Law Judge John Spooner rejected the correction officer’s theory and found that the tests had been properly conducted.

Significantly, Judge Spooner found that the procedure did not involve questioning of the officer by a supervisor or anyone else. Rather Johnson was ordered by a captain to report to the toxicology unit and there was directed to provide a hair sample by a civilian staff member. Because the test did not involve questioning, no written notice of a right to union representation was required under Civil Service Law §75(2).

The ALJ recommended that Johnson’s employment be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1303.pdf

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Disqualification of candidates for employment as police officers

Disqualification of candidates for employment as police officers

Needleman v Rockland County, 270 A.D.2d 423

The Rockland County Commissioner of Personnel disqualified Seth Needleman, David Oliver and Donna Russo for appointment as patrol officers in the Rockland County Sheriff’s Department. The three applicants sued in an effort to overturn the commissioner’s determination.*

Russo complained that the personnel commissioner had improperly disqualified her from appointment as a patrol officer.

The Appellate Division disagreed, commenting that the commissioner did not act irrationally or arbitrarily in relying upon “the evaluations of two independent psychologists, who used objective tests, to determine that [Russo] was not qualified for the position of patrol officer.”

The standards applied by the court in resolving Russo’s appeal:

1. An appointing authority has wide discretion in determining the fitness of candidates.

2. Such discretion is particularly broad in the hiring of persons for positions in law enforcement, to whom high standards may be applied.

3. The courts will not interfere with the discretion of the appointing authority to determine the qualifications of candidates unless the determination warrants judicial intervention because it is irrational and arbitrary.

Finding that Russo’s disqualification was not an abuse of discretion, the Appellate Division sustained the Supreme Court’s dismissal of her petition.

Section 50.4 of the Civil Service Law provides for the disqualification of applicants or appointees by the state civil service department or the municipal commission having jurisdiction. Among the reasons set out in Section 50.4 for disqualifying an applicant: the applicant lacks any of the established requirements for admission to the examination or for appointment to the position.**

However, in such cases the applicant must be provided with a pre-disqualification opportunity to object to his or proposed disqualification. In the words of Section 50.4:

No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

Although a full and formal pre-disqualification hearing is not required, the individual must be advised of his or her right to file a written objection to the disqualification and given a reasonable opportunity to submit the objection to the municipal commission or the state department.

Further, as a general rule, only the responsible municipal civil service commission, or in the case of employment by the State, the State Department of Civil Service may disqualify an applicant for employment in the public service.

Typically, the appointing authority does not have any independent authority to disqualify an individual in contrast to declining to appoint an individual certified for permanent appointment to a position in the competitive class consistent with the so-called Rule of Three [Section 61.1, Civil Service Law.***
 

However, the appointing authority may request a municipal commission or the State Department of Civil Service to initiate action that could lead to the disqualification of the applicant by the commission or by the State Department of Civil Service.

* The court dismissed both Needleman’s and Oliver’s appeals as abandoned and only considered Russo’s challenge her disqualification.

** Section 50.4 permits the disqualification of an applicant or an appointee (a) who is found to lack any of the established requirements for admission to the examination or for appointment to the position for which he applies; or (b) who is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of such position; or (d) who has been guilty of a crime; or (e) who has been dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency; or (f) who has intentionally made a false statement of any material fact in his application; or (g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment; or (h) who has been dismissed from private employments because of habitually poor performance.

*** Section 61.1, in pertinent part, provides: Appointment and promotion. 1. Appointment or promotion from eligible lists. Appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion.
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The party objecting to an arbitration award has a heavy burden to meet to prevail

The party objecting to an arbitration award has a heavy burden to meet to prevail
Matter of Cherry v New York State Ins. Fund, 2011 NY Slip Op 02797, Appellate Division, First Department

Supreme Court denied Stephanie Cherry’s Article 75 petition seeking to vacate the arbitration award upholding State Insurance Fund’s determination to terminate her employment based on violations of its zero-tolerance workplace violence policy.

Cherry appealed but the Appellate Division ruled that Cherry failed to meet her heavy burden of establishing that the arbitration award was irrational, or in violation of any of the grounds enumerated in CPLR 7511(b).*

Further, said the court, “There exists no basis to disturb an arbitrator's finding because ‘unless there is no proof whatever to justify the award so as to render it entirely irrational . . .the arbitrator's finding is not subject to judicial oversight.’”

Addressing another argument raised by Cherry, -- the award should be vacated due to [the State Insurance Fund’s] non-compliance with the procedures of CPLR Article 75 – the Appellate Division said that she had waived such a basis for challenging the award because she had continued participating in the arbitration proceeding “without objection."

* In addition to the grounds for vacating an arbitration award set out in CPLR Article 75, awards have been vacated by the courts based on a finding that the award violated a strong public policy.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02797.htm
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Parties directed to proceed to arbitration based on the court finding that its decision could not be made “without extensive fact-finding or legal analysis”

Parties directed to proceed to arbitration based on the court finding that its decision could not be made “without extensive fact-finding or legal analysis”
Matter of Newburgh v McGrane, 2011 NY Slip Op 02665, Appellate Division, Second Department

The City Council of the City of Newburgh passed a resolution reappointing Jean-Ann McGrane to the position of City Manager for the City of Newburgh for a three year period ending May 31, 2009. Subsequently the City and McGrane entered into an employment agreement consistent with that resolution passed by the City Council which provided that McGrane was entitled to severance pay and other benefits if the City terminated her employment.


In addition, the agreement set out a broad arbitration provision applicable to "[a]ll claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof."
When the City Council passed a resolution dated January 12, 2009 terminating McGrane's employment as City Manager "effective immediately," McGrane filed a demand for arbitration seeking an award of her salary and all benefits pursuant to the employment agreement.

The City filed a petition seeking to vacate the demand for arbitration and permanently stay arbitration on the ground that the employment agreement was void as against public policy. The City contended that the agreement violated the “term limits rule” by binding the successor members of the City Council to a contract relating to the area of governance entered into by members of the predecessor City Council.

The Supreme Court denied the City’s petition, dismissed the proceeding, and directed the parties to proceed to arbitration.

The Appellate Division affirmed Supreme Court’s ruling, explaining tha:

Arbitration is favored in the State of New York as a means of resolving disputes, and courts interfere as little as possible with agreements to arbitrate.

1. "The courts may intervene in a dispute which the parties had agreed to arbitrate where the arbitrators could not grant any relief without violating public policy."

2. Where a court examines an arbitration agreement ". . . on its face and concludes that the granting of any relief would violate public policy without extensive fact-finding or legal analysis, [it] may then intervene and stay arbitration.";

3. Citing Matter of Karedes v Colella, 100 NY2d 45, the Appellate Division noted that "The term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so"; and

4. "An agreement that violates the term limits rule is against public policy (see Matter of City of Utica Urban Renewal Agency v Doyle, 66 AD3d 1495; Karedes v Village of Endicott, 297 AD2d 413, 415)."

In this instance the Appellate Division found that any determination as to whether an arbitrator could not grant any relief without violating public policy on the ground that the employment agreement violated the term limits rule could not be made at this stage in the proceeding without extensive fact-finding or legal analysis.

Accordingly, said the court, the Supreme Court properly denied the petition and dismissed the proceeding, directing the parties to proceed to arbitration.

The Appellate Division noted that in the event that the arbitrator's award violates public policy, the Supreme Court retained the power to vacate the award."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02665.htm
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