Determining the scope of a grievance/arbitration clause set out in a collective bargaining agreement

Determining the scope of a grievance/arbitration clause set out in a collective bargaining agreement

Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Appellate Division, Fourth Department

The Thousand Island Central School District [District] and the Thousand Island Education Association [Association] entered into a collective bargaining agreement [CBA] that provided for the arbitration of "any alleged violation of this agreement or any dispute with respect to its meaning or application."

The Association filed a grievance on behalf of one of its members [Teacher] alleging that the District had violated the provisions of the CBA that require the District to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules.

The Association alleged that when Teacher was hired the District mistakenly placed her on the salary schedule without properly taking into account the graduate credits that she had earned and, as a result of that error, Teacher had been underpaid since the effective date of Teacher's employment by the District.

In response to the Association's demand for arbitration of the grievance the District commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration. In response to the District's action, the Association cross-moved to compel arbitration.

Supreme Court denied the Association's cross motion to compel arbitration. The Association appealed and the Appellate Division reversed and directed the parties to proceed to arbitration.

The Appellate Division again applied the two-part test used by the courts to determine whether a matter is subject to arbitration under a CBA, finding, first, that there was no statutory, constitutional or public policy prohibition against arbitration of the grievance.*

Turning to the second test, the Appellate Division decided that "the parties in fact agreed to arbitrate the particular dispute" as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

With respect to second prong of the test, the court said "[t]he dispute concerns whether [the District] placed Teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA." In view of this, "it is the role of the arbitrator, and not the court, to make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, e.g. does the scope of the CBA's grievance provisions encompass "the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, and whether the subject matter of the dispute fits within them?"

* The District conceded that arbitrating grievance concerning salaries to be paid to individuals is not proscribed by law or public policy and thus only the second prong test was at issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06759.htm

Negotiating disciplinary procedures for City of Schenectady police officers held a prohibited subject of collective bargaining

Negotiating disciplinary procedures for City of Schenectady police officers held a prohibited subject of collective bargaining

City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, Court of Appeals

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law, had announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectady and the Schenectady Police Benevolent Association [PBA]. Schenectady advised PBA that was replacing the contract disciplinary procedure, under which an employee upon whom disciplinary charges had been served had the right of appeal to an arbitrator, and, instead, unilaterally adopted disciplinary procedures that substituted the Public Safety Commissioner for the arbitrator as the ultimate administrative disciplinary decision maker.

PBA challenged the City's action, obtained a favorable ruling from the Public Employment Relations Board and ultimately the matter was considered by the Appellate Division.

The Appellate Division opined that the Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining, commenting that “courts have long recognized the 'strong and sweeping policy of the State to support collective bargaining under the Taylor Law." The Appellate Division then ruled that "the presumption is that all terms and conditions of employment are subject to mandatory bargaining" [City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 108].

Schenectady challenged the Appellate Division ruling and appealed the matter to the Court of Appeals. NYPPL summarized* the issue presented in Schenectady's appeal of the Appellate Division's decision to the Court of Appeals.

The Court of Appeals framed the issue before it as "Schenectady asks us to reverse the holding of the Appellate Division that the relevant provisions of the Second Class Cities Law were superseded by the enactment of the Taylor Law and thus collective bargaining applies to police discipline in Schenectady."

Noting that this was not the first time it had addressed the impact of the Taylor Law with respect to the issue of police discipline, the Court of Appeals said that its rulings in Matter of Patrolmen's Benevolent Assn., 6 NY3d 563, and Matter of Town of Wallkill, 19 NY3d 1066, resolved the question at issue here: "Is there a public policy strong enough to justify excluding police discipline from collective bargaining?"

In Patrolmen's Benevolent Association the Court of Appeals held that the New York City Charter and Administrative Code gave the police commissioner "cognizance and control over the . . . discipline of the department" and the authority "to punish [an] offending party." In Town of Wallkill, the Court of Appeals pointed out that Patrolmen's Benevolent Assn. was "dispositive where Wallkill had enacted a local law vesting disciplinary power with the Town Board.

In Schenectady the Court of Appeals concluded that the Second Class Cities Law, enacted prior to Civil Service Law §§75 and 76, specifically "commits police discipline to the police commissioner" and sets out the relevant disciplinary  procedures.

Finding that the Taylor Law's general command regarding collective bargaining was not sufficient to displace the more specific authority granted by the Second Class Cities Law, the Court of Appeals ruled that its decisions in Matter of Patrolmen's Benevolent Assn.and Matter of Town of Wallkillcontrol and police discipline is a prohibited subject of collective bargaining with respect to the City of Schenectady.

The Court of Appeals then reversed, with costs, the Appellate Division's ruling and annulled the determination of the Public Employment Relations Board challenged by Schenectady.

* NYPPL's analysis of the issues before the Court of Appeals are posted on the Internet at: https://publicpersonnellaw.blogspot.com/2017/09/court-of-appeal-to-determine-whether.html

The Court of Appeals' decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07210.htm

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Removing a judge from his or her office

Removing a judge from his or her office
Matter of Ayres, 2017 NY Slip Op 07207, Court of Appeals

J. Marshall Ayres [Petitioner], a non-lawyer Justice of the Conklin Town Court, sought the Court of Appeals' review of a determination of the New York State Commission on Judicial Conduct sustaining certain charges of misconduct and removing Petitioner from office.  The Court of Appeals, after a plenary review of the record, sustained the Commission's findings and concluded that Petitioner's removal was warranted.

The decision sets out the details of the events that resulted in the Commission's removing Petitioner from his office and describes a number of applicable judicial standards of ethics that a judge must be guided by so as to act "in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary." The Court of Appeals said the Petitioner "persisted in ... serious misconduct even after County Court informed" him as to his "proper role" as a judge. The court said that Petitioner's "misconduct is compounded by his failure to recognize these breaches of our ethical standards and the public trust" and that "[j]udges are held to 'standards of conduct more stringent than those acceptable for others.'"

In the words of the court, Petitioner "misses the essential point: that, as a judge, his conduct had to both be and appear to be impartial." This is a particularly high standard  and the misconduct with "which [Petitioner] is charged and which he does not deny — fails to meet it."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07207.htm