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

Selected audits and reports posted by New York State Comptroller

Selected audits and reports posted by New York State Comptroller

Source: Office of the State Comptroller, July 24, 2018

Click on text highlighted in color to access the full report.

On July 24, 2018,  New York State Comptroller Thomas P. DiNapoli announced that the following audits and examinations had been issued.
       
State Education Department: The Network for Children's Speech, Occupational & Physical Therapy (CTN) (2017-S-79)
For the three fiscal years ended June 30, 2015, auditors identified $707,677 in ineligible costs that CTN reported for state reimbursement. The ineligible costs included $668,259 in personal service costs, including $511,672 in overstated personal service costs for special education itinerant teachers (SEIT), and $39,418 in other than personal service costs, which included $13,574 in insufficiently documented expenses and $13,491 in related-party lease expenses that exceeded the owner’s actual cost.

Erie County Medical Center Corp. (ECMCC): Employee Incentive and Bonus Payments (2018-F-06)
An initial audit report, issued in January 2017 found ECMCC did not properly administer certain incentive payments made to its employees. For the audit period reviewed, auditors identified $76,254 in incentive payments that should be recovered from employees because they were not justified under the terms of the relevant incentive plan, were distributed in error, or were miscalculated. In a follow-up, auditors found ECMCC has made progress addressing the issues identified in the initial audit.

Environmental Facilities Corp. (EFC): Monitoring the Green Innovation Grant Program (2017-S-19)
Auditors found EFC monitors some aspects of the projects by frequent communication with grantees, receiving progress photographs, and reviewing fiscal documentation to monitor project progression. However, EFC’s on-site monitoring of the projects auditors sampled frequently occurred later in the construction cycle than EFC’s goal of between 50 and 75 percent completion. Also, EFC does not perform site visits after project completion to determine if the grantee is properly maintaining the project and has installed the required signage.

Homes and Community Renewal (HCR): Office of Rent Administration (2018-F-3)
An initial report issued in December 2014 found the office had not established criteria for how long it should take to assign, address, or resolve tenant complaints. Records showed that a significant number of tenant complaints may have been unresolved for anywhere between one to four years, taking an average time of 6.7 months just to assign an incoming complaint to an examiner, among other findings. In a follow-up, auditors found HCR has made some progress in addressing the issues identified in the prior report.

Department of Taxation and Finance: Personal Income Tax (2018-BSE8-01)
Auditors examined personal tax refunds processed during the calendar year January 1, 2017 through Dec. 31, 2017. During that time, the department processed almost 7.7 million refunds totaling over $9.5 billion. Auditors stopped 10,414 refunds totaling almost $36.7 million and sent them to the department for follow up evaluation and appropriate action.

New York State Homes and Community Renewal (HCR): Taxable Travel (2018-BSE7-01)
Auditors examined travel expenses of a HCR rent inspector incurred during calendar years 2014, 2015, and 2016. The employee’s official station was New York City, and all of his assignments were within 35 miles of his official station.  According to state regulations, employees are not in travel status when their work locations are within 35 miles of their official station. Therefore, the employee was not entitled to reimbursement for expenses to travel from his home to his work area. HCR was required to report the commuting expenses as supplemental wages of the employee, but did not.  As a result, we determined the employee incurred $3,543, $2,556, and $1,838 in personal commuting expenses during 2014, 2015, and 2016, respectively.
 
New York City Health and Hospitals Corp. (HHC) (2017-N-2)
Auditors reviewed files for a random sample of 200 direct hire and 98 temporary nurses from five HHC facilities or organizations to verify that these nurses were properly screened prior to being hired and were continuously monitored after hire. Of the 200 direct hire nurses in the sample, 41 (21 percent) had not been fingerprinted. Of these, 38 were hired before 2002 – when fingerprinting became required. For direct hire nurses, various background checks were not completed before hire. None of the facilities followed HHC procedures for maintaining documentation of all screening checks. Further, there was no evidence that HHC reviewed background check documentation, as required. Performance evaluations were not completed for 25 direct hire nurses, including 24 at a single facility.

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