A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

Onondaga Community Coll. (Professional Adm'rs of Onondaga Community Coll. Fedn. of Teachers & Adm'rs), 2018 NY Slip Op 04878, Appellate Division, Fourth Department

Although Supreme Court granted the Onondaga Community College's [OCC] petition seeking to stay arbitration, the Appellate Division unanimously reversed the lower court's order and granted the Onondaga Community College Federation of Teachers and Administrator's [Federation] cross-motion seeking to compel arbitration.

The Federation had filed a grievance on behalf of one of its members after OCC served the member with a letter notifying her that her position was being retrenched, i.e., eliminated. In its grievance and subsequent demand for arbitration the Federation alleged that OCC had "violated, misinterpreted, and/or inequitably applied the parties' collective bargaining agreement (CBA). Among the Federation's claims was that OCC had violated the CBA provision providing that dismissal of an employee having a continuing appointment "shall be for just cause" and was subject to "the grievance procedure of the CBA" as OCC deprived the member of work and benefits without just cause by constructively discharging her in under the guise of a retrenchment.

Concluding that Supreme Court should have denied OCC's petition staying arbitration, the Appellate Division explained:

1. It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.

2. There is a two-step test to determine "whether a grievance is arbitrable" whereby  [a] the court first determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance and [b] if there is no such prohibition, the is to determine whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

As OCC conceded that arbitration of the grievance is not prohibited pursuant to the first step of the test, the Appellate Division said that "[t]he sole question presented on this appeal is whether the parties have agreed to arbitrate the dispute at issue" consistent with the second step of the test.

A court's review under the second step, said the Appellate Division, "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom."

Here the Federation alleged that OCC "violated, misinterpreted, and/or inequitably applied the CBA in dismissing the member without just cause" by constructively dismissing the individual under the guise of a retrenchment.

In the words of the Appellate Division, "[i]nasmuch as [Federation] alleged that the ostensible retrenchment of the member's position was actually a dismissal without just cause, we agree with [Federation] that the court erred in concluding that [Federation had challenged OCC's] decision to retrench."

Although, said the Appellate Division, the CBA specifies several exclusions from the definition of a "grievance" that are therefore not subject to arbitration, including a decision by OCC to retrench a position, all other grievances remain subject to arbitration, in this instance the arbitration clause at issue here is broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties' [CBA]. Accordingly, the Appellate Division ruled the matter arbitrable, and "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In other words, the grievance at issue concerns whether the member was improperly dismissed without just cause under the guise of retrenchment, and there is a reasonable relationship between the subject matter of the grievance and the general subject matter of the CBA. Accordingly, "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04878.htm

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, 169 AD2d 871

 Under the terms of a Taylor Law agreement, an employee against whom disciplinary charges had been filed was entitled to a three step disciplinary proceeding. The third step was arbitration.

In the Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, the basic issue was the effect of an employee's pre-arbitration resignation on his or her right to demand arbitration.

The worker was found guilty of four acts of misconduct. The hearing officer recommended that the employee be terminated. A few days later the employee submitted his resignation.* On the same day that the employee submitted the resignation the union filed a demand for arbitration. The City refused to submit the issue to arbitration on the grounds that the individual, having resigned from his position, was no longer an employee and thus was not covered by the collective bargaining agreement.

The Union filed a legal action seeking a court order compelling the City to submit the matter to an arbitrator. The Union alleged that the employee had been coerced into submitting the resignation and thus it was null and void. Accordingly, it argued, the individual, not having lawfully resigned from his position, was still covered by the Taylor Law agreement.

The Appellate Division rejected the Union's claims regarding coercion. The decision notes that a union official and a city official simultaneously spoke to the individual regarding the ramifications of his decision to resign and that "[the individual] persisted in this course of action and signed a formal, written notice of resignation, witnessed by both officials."

Under the circumstances, the Appellate Division found that there was no evidence of coercion and that having resigned from his position, the individual was no longer covered by the Taylor Law agreement.

As to the issue of a resignation being coerced from an employee or obtained under duress, the courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

Rychlick, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him. Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney. He was also then advised that unless he resigned, charges would be filed. Rychlick submitted his resignation.

A few days later Rychlick asked to withdraw the resignation on the grounds that it had be "forced" from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

Ultimately the Court of Appeals upheld the agency's refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."

* N.B. The Rules of the State Civil Service Commission, which apply to State officers and employees, provide that "every resignation shall be in writing" [4 NYCRR 5.3]. Most local commissions and personnel officers have adopted a similar rule or regulation.

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

NYC Office of Trials and Hearings, OATH Index No. 486/18

The Appointing Authority served disciplinary charges against an employee alleged the employee, a service aide:

1) made disrespectful comments to her supervisor;

2) announced that there was going to be a fight and instigated a verbal altercation with a co-worker;

3) used profanity while snatching a meal tray from a patient; and

4) took a meal tray from a patient before he had finished eating and rudely commented to the patient that he was inadvertently exposed.

After a three-day trial, OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that Appointing Authority had proven the charged misconduct.

Taking into consideration service aide's history of misconduct, the disruption that she caused in the workplace and her inappropriate treatment of patients, Judge McGreach-Kuls recommended that the aide be termination from her position.

The Appointing Authority adopted the ALJ's findings and recommendation and terminate the service aide from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-486.pdf

 

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement

Matter of Lift Line, Inc. (Amalgamated Tr. Union, Local 282), 2018 NY Slip Op 05102, Appellate Division, Fourth Department

The terms of the collective bargaining agreement (CBA) between Lift Line, Inc., [Employer] and the Amalgamated Transit Union, Local 282 [Local 282] provided that, if the discharge of an employee was found to be without "just cause," the record of the offense would be cleared from the employee's personnel file.

The CBA also incorporated a memorandum of agreement with respect to employee attendance (Attendance Policy) that set forth an eight-step disciplinary process, including discharge of the employee at step eight. The Attendance Policy provided that an employee "who is tardy will progress one step in the attendance disciplinary process for each instance of tardiness," and would move back one step if he or she did not have "another incident of tardiness for six consecutive months after such discipline."

The employee [grievant] here was late to work on seven occasions over the course of a little over one year and was thus at step seven at the time of the incident that led to her termination. In that incident, she was one minute late to work after her vehicle was stuck behind a disabled train at a rail crossing near her employer's facility.

The arbitrator analyzed the just cause provision together with the Attendance Policy and concluded that Employer's strict application of the attendance disciplinary process to terminate the grievant was "overly severe, especially with the absence of any evidence that efficiency or other difficulties were created by the [g]rievant's one-minute tardiness."

Supreme Court granted Employer's petition to vacate the arbitration award, in part, denied the application of Union to confirm the arbitration award, and reimposed the penalty of employment termination as provided by the CBA. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," granted the Union's application and confirmed the arbitration award.

As relevant here, said the Appellate Division, "[A]n arbitrator's rulings, unlike a trial court's, are largely unreviewable [and] [a]n arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words of the contract before him [or her] and still be impervious to challenge in the courts." Explaining that an arbitration award is irrational "if there is no proof whatever to justify," the court said it agreed with the Union  that the arbitrator's award in this instance was not irrational* as here "there is a colorable justification for the arbitrator's determination."

The Attendance Policy was a no-fault, straightforward progression of discipline that would be imposed for every incident of tardiness. Nevertheless, the CBA also had the "just cause" provision, and the arbitrator concluded that strict adherence to the attendance policy could be rejected in exceptional cases.

In concluding that the grievant's termination was overly severe, the court said that the arbitrator relied on the fact that the grievant called in 10 minutes before her shift to say that she might be late due to the delay caused by the disabled train; another employee called in to report the same delay; the delay was unexpected and abnormal; the grievant was only one minute late; and no difficulties were created by the grievant's tardiness.

Thus, said the Appellate Division, "[t]he arbitrator made a rational interpretation of the just cause provision and the Attendance Policy. "Although the court recognized that "a different construction could have been accorded to the subject provision[s] of the [CBA]," it decided that "it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

Observing that the CBA provided that the arbitrator "shall have no power or authority to add to, subtract from, modify, change, or alter any provisions of this Agreement,"** the Appellate Division found that the arbitrator had not impose any new requirement upon Employer before it could discipline its employees and thus did not add to or alter the CBA. Rather, as the court had indicated earlier in its opinion, "the arbitrator determined, under the specific facts of this case, that the penalty of termination could not be upheld" and did not adopt any new rules that Employer must follow in future disciplinary cases. [Emphasis supplied by the court.]

Indeed, the court commented that "[t]he argument that the arbitrator exceeded a limitation in the collective bargaining agreement . . . is nothing more than a challenge to the substance of the arbitrator's contract interpretation, which . . . is foreclosed." 

* The Appellate Division, however, noted that "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

**A court may vacate an arbitration award if it finds that the rights of a party were prejudiced when "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (CPLR 7511 [b] [1] [iii])." Such an excess of power occurs only where the arbitrator's award violates strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05102.htm

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

Onondaga Community Coll. (Professional Adm'rs of Onondaga Community Coll. Fedn. of Teachers & Adm'rs), 2018 NY Slip Op 04878, Appellate Division, Fourth Department

Although Supreme Court granted the Onondaga Community College's [OCC] petition seeking to stay arbitration, the Appellate Division unanimously reversed the lower court's order and granted the Onondaga Community College Federation of Teachers and Administrator's [Federation] cross-motion seeking to compel arbitration.

The Federation had filed a grievance on behalf of one of its members after OCC served the member with a letter notifying her that her position was being retrenched, i.e., eliminated. In its grievance and subsequent demand for arbitration the Federation alleged that OCC had "violated, misinterpreted, and/or inequitably applied the parties' collective bargaining agreement (CBA). Among the Federation's claims was that OCC had violated the CBA provision providing that dismissal of an employee having a continuing appointment "shall be for just cause" and was subject to "the grievance procedure of the CBA" as OCC deprived the member of work and benefits without just cause by constructively discharging her in under the guise of a retrenchment.

Concluding that Supreme Court should have denied OCC's petition staying arbitration, the Appellate Division explained:

1. It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.

2. There is a two-step test to determine "whether a grievance is arbitrable" whereby  [a] the court first determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance and [b] if there is no such prohibition, the is to determine whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

As OCC conceded that arbitration of the grievance is not prohibited pursuant to the first step of the test, the Appellate Division said that "[t]he sole question presented on this appeal is whether the parties have agreed to arbitrate the dispute at issue" consistent with the second step of the test.

A court's review under the second step, said the Appellate Division, "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom."

Here the Federation alleged that OCC "violated, misinterpreted, and/or inequitably applied the CBA in dismissing the member without just cause" by constructively dismissing the individual under the guise of a retrenchment.

In the words of the Appellate Division, "[i]nasmuch as [Federation] alleged that the ostensible retrenchment of the member's position was actually a dismissal without just cause, we agree with [Federation] that the court erred in concluding that [Federation had challenged OCC's] decision to retrench."

Although, said the Appellate Division, the CBA specifies several exclusions from the definition of a "grievance" that are therefore not subject to arbitration, including a decision by OCC to retrench a position, all other grievances remain subject to arbitration, in this instance the arbitration clause at issue here is broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties' [CBA]. Accordingly, the Appellate Division ruled the matter arbitrable, and "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In other words, the grievance at issue concerns whether the member was improperly dismissed without just cause under the guise of retrenchment, and there is a reasonable relationship between the subject matter of the grievance and the general subject matter of the CBA. Accordingly, "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04878.htm