The tests applied by courts in New York State to determine if a grievance alleging a violation of a provision in a public sector collective bargaining agreement is arbitrable

In Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Court of Appeals has recognized a two-step process for a court to determine when a particular public sector grievance is subject to arbitration. The court must first determine if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance at issue. If there is no such bar, the court must then examine the collective bargaining agreement to determine if the parties have agreed to arbitrate the dispute at issue.

In this CPLR Article 75 action the petitioner [Employer] sought a permanent stay of arbitration of a labor organization's [Union] demand that an adverse contract grievance decision be submitted to arbitration. Supreme Court rejected the Employer's attempt to stay arbitration of the matter and, on appeal, the Appellate Division sustained the lower court's ruling.

The Appellate Division, noting that the Employer did not claim that was a statutory, constitutional or public policy impediment to submitting the matter to arbitration, said its review of the Employer's appeal was focused on whether the parties had agreed to arbitrate the dispute at issue.

The relevant clause in the controlling collective bargaining agreement [CBA] provided that "i]n the event the grievance is not resolved after the final step in the grievance procedure [set out in the CBA], [either party] may submit [the matter] to arbitration in accordance with the procedure [set out in the CBA] within ten (10) days of the close of the Stage Three review." A grievance was defined as "any claimed violation, misinterpretation, or inequitable application of the terms and conditions" set out in the CBA.

This broad arbitration clauses, opined the Appellate Division, includes matters where a reasonable relationship between the CBA and the matter to be arbitrated exists. As the CBA includes terms and conditions of employment, including a provision that office hours for the grieving employees  involved "shall be from 8:00 a.m. to 5:00 p.m. Monday through Friday," the court found that "a reasonable relationship exists between the subject matter of the grievances and the general subject matter of the CBA, and [thus] the matter is arbitrable."

The court rejected the Employer's argument that "there is no valid agreement to arbitrate because the grievants' claims pertain to a 1995 Memorandum of Agreement (MOA) between the parties and not the CBA."

However, said the court, "the [employees being represented by the Union] have alleged a violation of the CBA and not the separate MOA" and whether there is merit to the Employer's contention that there is no violation of the CBA because the MOA remains enforceable and permits the 11:15 a.m. to 7:15 p.m. shift is an issue for the arbitrator to resolve.*

Addressing the Employer's claim that the demand for arbitration was untimely, the Appellate Division ruled that the Employer had failed to meet its "initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired."

Accordingly, the Appellate Division unanimously affirmed the Supreme Court's ruling without costs.

* In addition, the court pointed out that the CBA does not contain an express provision requiring strict compliance with the contractual grievance procedures as a condition precedent to arbitration but, instead, provides that the arbitrator will consider whether grievance "procedures have not been followed" in determining whether to deny the grievance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06298.htm

Violating a "last chance agreement" to avoid disciplinary action

A tenured assistant principal [Plaintiff] assigned to host an award ceremony arrived at the school admittedly under the influence of alcohol. Disregarding the instructions of his principal, Plaintiff left the school in his car and was thereafter arrested for driving while intoxicated. His arrest was reported in the local media and was discussed by parents and students on social media.

In consideration of the fact that Plaintiff had been a well-regarded teacher and administrator, the school district [Respondent] elected not to initiate disciplinary proceedings but instead offered Plaintiff a "last chance agreement" requiring Plaintiff to satisfy various counseling and reporting requirements and which provided that if, in the future, Plaintiff tested "positive for alcohol on school grounds or was convicted of an alcohol-related offense, he would be terminated without a hearing under Education Law §3020-a." Plaintiff agreed to the terms set out in this "last chance agreement."*

Subsequently faculty and staff reported that Plaintiff appeared to be intoxicated at a school dance at which he was the administrator in charge. Respondent took no disciplinary action then because it was unable to verify those suspicions by administering a blood alcohol test on petitioner. Shortly thereafter Plaintiff was arrested for driving while intoxicated after he refused a breathalyzer test. 

As the last chance agreement provided for Plaintiff's immediate termination without a hearing only if he tested positive for alcohol or was convicted of an alcohol-related offense, Respondent initiated disciplinary proceedings pursuant to §3020-a of the Education Law. 

The seven charges filed against Plaintiff including allegations that he failed to comply with the last chance agreement and violated school policies by keeping empty alcohol bottles in his desk at school. After a three-day disciplinary hearing, the Hearing Officer sustained all seven charges and accepted Respondent's recommendation that Plaintiff be terminated from his position.

In response to Plaintiff's initiating this proceeding under Education Law §3020-a (5) and CPLR §7511 seeking to vacate the arbitration award, Respondent cross-moved to confirm the arbitration award. Supreme Court vacated certain charges and specifications and certain factual findings of the Hearing Officer and found the penalty to be shocking to the conscience. Respondent appealed and the Appellate Division reversed the lower court's judgment.

In vacating the arbitration award in part, the Supreme Court determined that, among other things, [1] the parties "mutually rescinded" the last chance agreement when they proceeded to arbitration, thus rendering that agreement void and [2] Respondent elected its remedy by proceeding to arbitration, thereby foregoing any prospective disciplinary action against Plaintiff under the last chance agreement. 

In addition, Supreme Court found that the Hearing Officer's recommendation of termination was shockingly disproportionate to Plaintiff's misconduct "inasmuch as that misconduct did not occur on school grounds," remitting the matter to a different hearing officer to conduct a hearing on the appropriate sanction for the charges sustained.

Respondent appealed and the Appellate Division reversed the lower court's judgment, explaining:

1. There was no evidence in the record that, by proceeding to arbitration, the parties intended to cancel or mutually rescind the last chance agreement. Rather, at the disciplinary hearing, both parties agreed that the last chance agreement remained valid and enforceable;

2. Supreme Court erred in its determination that the last chance agreement was rendered unenforceable under the election of remedies doctrine inasmuch as that doctrine has no application to the last chance agreement or to the facts of this case, opining that [i]f it was the intent of the parties to preclude [Respondent] from seeking a penalty for [Plaintiff's] failure to comply with the last chance agreement if [Respondent] 'employed the procedures set forth by [Education Law § 3020-a], it was incumbent upon them to have specifically so stated' in the agreement" and nothing in the agreement indicated that Respondent was limited to disciplining Plaintiff under the last chance agreement for future misconduct or that Respondent could not initiate a disciplinary hearing with respect to Plaintiff's violations of the last chance agreement itself;

3. Supreme Court erred in vacating the Hearing Officer's conduct findings as Education Law §3020-a (5) permits judicial review of a hearing officer's decision but expressly provides that "the court's review shall be limited to grounds set forth in" CPLR 7511 whereby "[a]n arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly [e]ceeds a specifically enumerated limitation on the arbitrator's power." In the words of the Appellate Division, "Where, as here, the parties are "subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious ...." and "it must be in accord with due process." and "the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper; and

4. Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, Supreme Court erred in vacating the penalty imposed by the arbitrator, commenting that "Unless an irrationality appears or the punishment shocks one's conscience, sanctions imposed by an administrative agency should be upheld." Given the seriousness of Plaintiff's offenses and his position as a role model for young adults, the Appellate Division said it could not conclude that the Hearing Officer's penalty of termination was shocking to the conscience and in vacating the penalty Supreme Court inappropriately substituted its judgment for that of the Hearing Officer.

* Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06297.htm

Determining service credit for the purpose of attaining tenure by educators serving as substitute employees

As this ruling by the Court of Appeals [Court] indicates, a substitute teacher may satisfy probationary service requirements using "Jarema credit"* attain tenure as §2509(1)(a) of the Education Law allows a teacher to apply service as a "regular substitute" towards completion of the probationary term required for tenure.

If a probationer substitutes for a teacher who is on leave for an indefinite period, is he or she a "regular substitute" and thus eligible for Jarema credit? Yes said the Court. Further, the teacher can be deemed to have earned this credit retroactively, even if the district explicitly described the conditions of employment differently in the hiring process.

In other words, one can become a "regular substitute" by virtue of one's service even if the job was described differently at is onset. The Court explained that the "ambiguous statutory term 'regular substitute' should be defined by the actual nature and continuity of the substitute service, not by the anticipated duration of the replaced teacher's absence."

Jarema credit may open the door to tenure by estoppel should a school board accepts the continued services of a teacher, but fail to take the action required by law to either grant or deny tenure prior to the expiration of the educator's probationary term..

In this instance, a Board of Cooperative Educational Services [BOCES] employed two types of substitute teachers: "per diem substitutes" and "regular substitutes."

Per diem teachers were employed for an indefinite period in order to cover the absences of regular teachers.  Per diem teachers were paid at a daily rate and had limited employment benefits.

In contrast, BOCES' "regular substitutes" were teachers who received a "special appointment for a fixed time." Regular substitutes were typically paid from a salary line temporarily available because the regular teacher was on a leave of absence. Regular substitutes also received a prorated annual salary with full benefits.

In adjudicating an educator's claim that she had attained tenure by estoppel the Court held that  "... as probationary periods are employed to determine if appointees are 'competent, efficient and satisfactory' for purposes of recommending tenure, there is no reason why [the educator's] service following her initial appointment should be considered anything less than time accrued towards reducing the [mandatory] probationary period the statute requires."

Thus opined the Court, tenure evaluations can be made regardless of the title under which the probationer serves. A school board may not undermine the policies behind the tenure system and artificially extend the probationary period by designating a position "acting" or "temporary," said the Court.

In addition, the Court rejected BOCES' argument that sanctioning a "surprise" acquisition of tenure by estoppel would both saddle school districts with the administrative burden of tracking the probationary term for teachers on a day-to-day basis and deny them the full statutory period in which to consider qualifications for tenure.

The Court said that such an argument assumes the wrong perspective on the tenure rules.

It said that its prior opinions has made clear that tenure rules should be read so as to discourage a board's use of technical obstacles and manipulable labels that can deprive a qualified teacher of tenure rights. Further, the distinction between "definite" and "indefinite" leaves does not in fact assure BOCES predictability or certainty since a "definite term" is not a requirement for regular substitute service. Indeed, even where a regular substitute is engaged for a "definite term" to replace a tenured teacher, the absence may end unexpectedly and the tenured teacher can insist upon early return to the encumbered position.

Noting that in this instance the educator had continuous service with BOCES, the Court ruled that she was entitled to Jarema credit that, when combined with her additional service with BOCES, entitled her to tenure.

* Typically referred to by the name of the bill's sponsor, then Member of the Assembly  Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

The decision is posted on the Internet at:

https://www.leagle.com/decision/199720090ny2d1101193

A hospital may held liable for violations of the Rehabilitation Act if its staff members are deemed to be acting as "officials" or "policymakers" of the hospital

This decision addresses whether and when hospital staff members may be considered to be acting as "officials" or "policymakers" of the hospital at which they are employed so that their conduct may be attributed to the hospital and thereby establish a Plaintiff’s right to damages on the ground that the defendant hospital was "deliberately indifferent" to a violation of the federal Rehabilitation Act [RA], 87 Stat. 355.*

Here, said the Second Circuit Court of Appeals, the record contains evidence that the hospital staff involved had knowledge of the deprivation of a patient’s right "to an interpreter, had the power to cure that violation, and failed to cure it."

Accordingly, the court ruled that the federal district court's summary judgment in favor of the defendant hospital was inappropriate.

This, said the court, did not mean that a hospital could absolve itself of liability for damages by failing to empower staff members who have contact with patients to cure potential violations of the RA, such as by failing to empower front line staff to procure, as was necessary in this instance, an interpreter for the hearing impaired. 

Indeed, opined the Circuit Court of Appeals, a hospital might be liable precisely because its policymakers failed to put in place a policy that would reasonably enable a patient to obtain the relief guaranteed by the  RA by complaining to the staff with whom the patient has contact. Were such the case, it could be argued that the “policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result" from its failing adopt a policy providing for a patient obtaining RA rights to which they were entitled.   

Such an argument, observed the Circuit Court, is especially strong in cases where a regulation expressly addresses a particular need, effectively putting hospital policymakers on notice that they must ensure the hospital’s policies are reasonably capable of meeting that need, specifically citing 45 C.F.R. §84.52(d)(1). 

* 45 C.F.R. §84.52(d)(1) mandates that hospitals subject to its provisions “shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills.”

The decision is posted on the Internet at:

https://hr.cch.com/eld/BiondoHealth081919.pdf

A party seeking a stay of arbitration alleging a violation of a term set out in a collective bargaining agreement must show that it has not agreed to arbitrate the issue or some other basis barring arbitration

Under what conditions may a party obtain a stay of a demand for arbitration was the significant issue in the litigation involving an alleged violation of a provision set out in a collective bargaining agreement [CBA] negotiated pursuant to Article 14 of the Civil Service Law, commonly referred to as the Taylor Law?

The CBA between the employer [City] and the employee organization [Union] provided that in the event an employee in relevant collective bargaining unit  was  "necessarily absent" from duty as the result of an occupational injury or disease and who was placed on [disability] leave pursuant to §71 of the Civil Service Law, the employee was to receive full salary for a maximum period of nine months during such absence notwithstanding the limitations set out in §71 with respect to "paid leave" while on such disability leave.*

A member of the Union in the collective bargaining unit [Employee] placed on §71 leave and was granted paid disability leave in accordance with the terms set out in the CBA. About a month later the City had Employee examined by its medical expert [Physician]. Physician found that Employee suffered from a mild impairment and that he was then fit perform sedentary work. The Physician also opined that Employee could perform "full duty" within two weeks.

Newburgh directed Employee to report for "sedentary work." When Employee filed to report for work as directed, City removed him from the payroll.

Employee was again examined by the City's medical expert and, again, the Physician found no disability and, again, the City directed Employee to return to work. Employee, again, failed to report for duty as directed.

Next the Union filed a contract grievance claiming that the City had improperly discontinued Employee's disability leave with pay. When the grievance was denied, Union demanded that the matter be submitted to arbitration. City thereupon obtained a court order from Supreme Court staying the arbitration on the grounds that "the issues raised by [Union] were not arbitrable."

The Appellate Division vacated the stay issued by Supreme Court, permitting the arbitration to go forward.

The court pointed out that a party to a collective bargaining agreement may seek a stay of arbitration on the ground that a valid agreement to arbitrate has not been made or under color of some other reason authorized by §7503 of the Civil Practice Law and Rules. In addition, the Appellate Division explained that a court may stay the arbitration when the particular claim to be arbitrated is not within the scope of the arbitration agreement.

Although City had contended that the matter that the Union sought to have submitted to arbitration was not within the scope of the arbitration agreement, the Appellate Division found that the City had not demonstrated any basis justifying staying the arbitration.

The court held that "[A] challenge to the propriety of the City's withdrawal of its grant of paid [disability] leave to [Employee] pursuant to ... the collective bargaining agreement is a claim within the scope of the arbitration clause" set out in the CBA as the agreement, by its terms, provided that "a claim of violation, misinterpretation or misapplication of the terms of a written collective bargaining agreement" was subject to binding arbitration."

The Appellate Division also observed that "the mere fact that the arbitration may entail the incidental interpretation or application of statutes does not compel a different result."

* §71, sometimes referred to as Workers' Compensation Leave, mandates that employees in the classified service be given a leave of absence without pay for at least one year unless the disability is of such a nature as to permanently incapacitate the individual for the performance of the duties of his position. The employee may use sick and other leave or compensatory time credits in order to be retained on the payroll while on §71 leave.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1996787232ad2d5551237