The right to appeal an arbitration

The right to appeal an arbitration
Wilson v NYC Bd. of Ed., 261 AD2d 409

The Wilson decision illustrates a basic tenet to arbitration under a collective bargaining agreement: the “owners” of the arbitration are the parties to the Taylor Law agreement. Those parties typically are the employer and the union.

The individual employee whom the grievance involves is not a party to the arbitration. Accordingly, the union has the right to decide whether to appeal an arbitration decision. The individual union member is not a party to the arbitration and lacks this right, as Nancy Wilson discovered.

Wilson was a teacher in New York City from 1984 until 1996, when the Board of Education decided to terminate her. Wilson’s union initiated a grievance proceeding on her behalf to challenge her termination. After the grievance was denied, the union filed a demand for arbitration as provided for in the collective bargaining agreement.

The arbitrator rejected the appeal, upholding the school board’s decision to terminate Wilson.

Wilson then filed a petition seeking to have the arbitrator’s award vacated pursuant to Section 7511 of the Civil Practice Law and Rules. The Appellate Division dismissed Wilson’s petition on the grounds that Wilson did not have any standing to challenge the arbitration award. The court noted that she was neither a “party” to the collective bargaining agreement nor a “party” to the arbitration.

Under the circumstances, ruled the court, only an employer or a union has standing to ask a court to vacate an arbitration award or have it confirmed. The employee involved cannot do this on his or her own behalf unless he or she is able to demonstrate that the union’s decision not to proceed was made in bad faith.
NYPPL

Right to counsel during administrative disciplinary action

Right to counsel during administrative disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509

Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney. Such rights are standard in the disciplinary provisions of collective bargaining contracts as well as disciplinary statutes such as Section 75 of the Civil Service Law and Section 3020-a of the Education Law.

The Elmore decision illustrates that an employer who seeks to limit an employee’s access to counsel during a disciplinary proceeding can be viewed by the courts as committing a fatal error.

The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Elmore, pursuant to Section 3020-a. Elmore’s personal testimony took place on various dates over a period of ten weeks.

At the district’s request, the hearing officer ordered Elmore not to “confer with his attorney about his testimony over the breaks in the hearing.” Nor could Elmore “review transcripts of his testimony during breaks in his testimony.”

Found guilty of the charges, Elmore asked the Supreme Court, Nassau County, to vacate the award pursuant to Section 7511 of the Civil Practice Law and Rules [CPLR].*

Elmore contended the hearing officer’s order constituted “misconduct by the arbitrator” within the meaning of Article 75 of the CPLR because the order effectively denied him the right to counsel.

The district cited a ruling in a criminal matter where the Court of Appeals upheld a lower court’s “restriction of conferencing between a defendant and his attorney during a recess in the course of a criminal trial” [People v Enrique, 80 NY2d 869] in support of its position. But Justice Geoffrey J. O’Connell was not persuaded Enrique was analogous because that ruling pertained only to a single, brief recess period.

The court said that a closer approximation of Elmore’s situation was addressed in People v Carracedos, 89 NY2d 1059. In Carracedos the Court of Appeals ruled that the preclusion of communications between counsel and client during a single overnight recess was a violation of the accused’s right to counsel. Elmore had demonstrated that he was prevented from communicating with his attorney for “weeks at a time” in the middle of his testimony.

Holding that Elmore’s rights were prejudiced by the hearing officer’s order barring him from speaking with his attorney, Justice O’Connell vacated the arbitration award in its entirety. The Appellate Division affirmed the ruling.

[For decisions addressing Elmore’s being placed on leave without pay in concert with this disciplinary action, see Elmore v. Mills, 296 AD2d 704 and Elmore v. Plainview Old Bethpage Central School Dist., 299 AD2d 545].

* N.B. Section 3020-a, as amended, provides that appeals from a Section 3020-a hearing officer’s determination must be filed within ten days pursuant to Section 7511, CPLR.
NYPPL

Appealing a disciplinary termination

Appealing a disciplinary termination
Stevens v McGraw CSD, 261 AD2d 698, motion for leave to appeal denied, 93 NY2d 816

McGraw Central bus driver Arthur Stevens’ failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

Section 75 disciplinary charges were filed against Stevens alleging that he permitted unacceptable behavior on his bus, was absent without leave, inaccurately reported his work time, and failed to comply with his supervisor’s directives as well as with district rules and procedures.

The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer’s findings and recommendation.

When Stevens challenged his termination, the district raised the technical defense that he had failed to comply with notice requirements set out in Section 3813 of the Education Law.

Section 3813 requires that the individual, before going to court, give the school district an opportunity to respond. The individual must file an affidavit that the district was given timely notice of the claim and that it failed to act within 30 days of such notice.

The Appellate Division affirmed a lower court’s ruling dismissing Stevens’ Article 78 action, holding that “the mere fact that he seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right.”

Section 76 of the Civil Service Law gives a person found guilty of charges brought pursuant to Section 75 a statutory right to appeal the penalty imposed to the responsible civil service commission or, in the alternative, to the courts pursuant to Section 78 of the CPLR. However, the Appellate Division’s ruling in Stevens holds that an employee of a school district or a BOCES, as a condition precedent to his or her filing an Article 78 appeal challenging the disciplinary action, must file a timely notice of claim with the district or BOCES.

In contrast, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”

Presumably this means that although a teacher who is terminated for cause pursuant to Section 3020-a of the Education Law is not required to file a notice of claim as a condition precedent to his or her filing an appeal pursuant to Article 75 of the CPLR, [see Education Law Section 3020-a.5], a school district employee in the classified service who is terminated after a Section 75 hearing must satisfy the requirements of Section 3813 in order to file an Article 78 action challenging the disciplinary action.

It would seem that the fact that the Civil Service Law provides an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts should have the same standing with respect to such an employee’s “tenure rights” as does Section 3020-a.5 insofar as the “tenure rights” of educators are concerned.

Another type of case in which the school district attempted to invoke the provisions of Section 3813 involved a teacher’s application for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law.

In Elmsford UFSD v Alfred G. Meyer, (Supreme Court, Albany County), State Supreme Court Justice Anthony Kane rejected the district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807.

While it appears that exceptions to the Section 3813 “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813 rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
NYPPL