In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

County of Rockland v Corr. Officers Benevolent Assn. of Rockland County, Inc., 2015 NY Slip Op 01798, Appellate Division, Second Department

A correction officer filed a grievance after he was denied a longevity pay increase. After his grievance was denied, the Correction Officers Benevolent Association of Rockland County, Inc. filed a notice of intent to arbitrate the grievance. Contending that the parties had not agreed to arbitrate this type of grievance, Rockland County sought a permanent stay of arbitration. The County's motion to permanently stay arbitration was granted by Supreme Court. 

Supreme Court determined that the parties had only agreed to arbitrate certain limited matters expressly delineated in the collective bargaining agreement [CBA], which did not include the grievance at issue. The Association appealed and the Appellate Division ruled that Supreme Court properly granted the County’s petition to permanently stay arbitration and denied the Association’s cross petition to compel arbitration.

The Appellate Division explained that the determination of whether a dispute between a public sector employer and a public employee organization is arbitrable is subject to a two-prong test, citing Deer Park UFSD v Deer Park Teachers’ Association, 77 AD3d 747, whereby:

1. The court must initially determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and absent such a finding;

2. Must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular dispute at issue.

Observing that here the County did not claim that the arbitration of the subject matter of the dispute was prohibited by law or public policy, the court concluded the only issue to consider was whether the parties agreed to arbitrate the particular dispute.

The Appellate Division said that unlike general labor disputes in the private sector involving arbitration, the intent of parties to a collective bargaining agreement in the field of public employment to arbitrate a particular issue may not be presumed but rather “it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the [parties to the collective bargaining agreement] did not intend to refer differences which might arise to the arbitration forum," citing Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d at 514.

Finding that the relevant collective bargaining agreement did not broadly provide for the arbitration of any grievance that may arise under the CBA, the Appellate Division ruled that Supreme Court correctly concluded that the CBA limited the availability of arbitration to specifically enumerated matters.

The bottom line: As the Association failed to demonstrate that "the parties in fact agreed to arbitrate [this] particular dispute," the Supreme Court properly granted the County's petition to permanently stay arbitration and properly denied the Association's cross petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01798.htm

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee
2015 NY Slip Op 01746, Appellate Division, First Department

An individual [Trainee] was accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of a seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the employer’s determination to dismiss him from the traineeship.. Supreme Court granted the employer’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."*

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.”

The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her.

Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

* N. B. Should the appointing authority elected to terminate a probationary employee prior to his or her completing the minimum period of his or her probationary period, the individual is entitled to notice and hearing in accordance with the controlling disciplinary procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01746.htm

Employee’s refusal to cooperate with a police investigation found to constitute misconduct

Employee’s refusal to cooperate with a police investigation found to constitute misconduct
2015 NY Slip Op 01740, Appellate Division, First Department

The Appellate Division confirmed the determination of New York City’s Police Commissioner adopting the findings of the disciplinary Hearing Officer that a New York City police officer had engaged in misconduct, and imposing a penalty of forfeiture of 30 vacation days, a 30-day suspension, without pay, and a one-year dismissal probation period.

The court said that there was substantial evidence to support the Hearing Officer’s findings that the police officer had refused to cooperate with a Port Authority Police Department (PAPD) investigation, and that he gave vague and nonresponsive answers at a subsequent interview by New York City Police Department officials.

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The imposed penalty does not shock our sense of fairness.”

Similarly, a New York City Office of Administrative Trials and Hearings' administrative law judge held that an employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview [NYC Health and Hospital Corporation v Jones, OATH Index #1100/10, posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1100.pdf].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01740.htm

_____________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

_____________