Deeming an employee's unauthorized work absences from work "a voluntary resignation"

The employer had deemed the employee's unauthorized work absences from work "a voluntary resignation from his employment" and terminated him from the position. The employee's union demanded the employer's action be submitted to arbitration.

The arbitrator ruled in favor of the employee organization, directing the employee's reinstatement with back salary and benefits. The employer appealed the arbitrator's ruling pursuant to Article 75 of the CPLR. 

The Appellate Division ultimately confirmed the arbitrator's award, reversing so much Supreme Court's decision that vacated the arbitrator's awarding the employee back pay and benefits, thus reinstating and affirming the arbitrator's award as promulgated. The Appellate Division's ruling is set out below.

N.B. Former 4 NYCRR 5.3(d), repealed effective February 27, 1979, provided that a state officer or employee absent for a period of ten or more days without an explanation could be deemed to have resigned from his position. In Bernstein v Industrial Commissioner, 57 AD2d 767, 4 NYCRR 5.3(d) was held to violate the employee's right to due process. See, also, Laurido v Simon, 489 F. Supp. 1169.

Notwithstanding Bernstein, such a provision has been held lawful if the parties had agreed to memorializing such a term or condition of employment in a collective bargaining agreement as a result negotiations within the meaning of Article 14 of the Civil Service Law. Typically the courts will decline to void the provisions of such agreements except in cases involving a violation of a strong public policy. 

 

Matter of County of Albany (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO,  Albany County Local 801)

2023 NY Slip Op 01828

Decided on April 6, 2023

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:April 6, 2023

535386

In the Matter of the Arbitration between County of Albany, Respondent, and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801, et al., Appellants.

Calendar Date:February 16, 2023
Before:Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Scott Lieberman of counsel), for appellants.

Eugenia Koutelis Condon, County Attorney, Albany (Yorden C. Huban of counsel), for respondent.

 

Pritzker, J.

Appeal from an order of the Supreme Court (Christina L. Ryba, J.), entered March 14, 2022 in Albany County, which partially granted petitioner's application pursuant to CPLR 7511 to vacate an arbitration award.

Respondent Michael J. Frazier was an employee of petitioner within the Department of General Services. In May 2020, after being absent from work despite not having any accrued sick leave and having not been approved for medical leave under the Family Medical Leave Act (hereinafter FMLA),^[FN1] Frazier was served with a notice of discipline charging him with unauthorized work absences and informing him that such action was interpreted as a violation of the Rules and Regulations of Albany County Employees (hereinafter the rules) and the collective bargaining agreement (hereinafter the CBA) between respondent Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801 (hereinafter CSEA) and petitioner. Considering Frazier's unauthorized work absences and lack of medical certification, petitioner interpreted Frazier's actions as a voluntary resignation from his employment. Thereafter, CSEA filed a grievance on Frazier's behalf, demanding that petitioner arbitrate the terms of Frazier's employment. Following an arbitration hearing, the arbitrator found that Frazier's absence did not constitute just cause for disciplinary action under the CBA.^[FN2] As such, the arbitrator granted CSEA's grievance and awarded Frazier reinstatement as well as back pay and benefits. Petitioner subsequently commenced this proceeding pursuant to CPLR article 75 to vacate the arbitrator's award on the ground that the arbitrator exceeded her authority by awarding Frazier back pay and benefits. Thereafter, respondents joined issue and requested that Supreme Court deny the petition. The court found no basis to disturb the arbitrator's finding that Frazier's actions did not amount to a voluntary resignation yet held that the arbitrator exceeded her authority by awarding Frazier back pay and benefits from the time of his termination to his reinstatement because the imposition of such remedy exceeded the stipulated issue as set forth by the parties. Accordingly, the court partially granted the petition and vacated that portion of the arbitrator's award. Respondents appeal.

Respondents assert that Supreme Court erred in partially granting the petition and vacating the arbitrator's award of back pay and benefits based upon a determination that said award exceeded the arbitrator's authority because doing so was beyond the scope of the two-part stipulated issue. We agree. Here, the stipulated issue reads as follows: "Did [petitioner] have just cause to discipline [Frazier]? If so, what is the appropriate penalty, if any?" The court interpreted this to mean that the arbitrator could only proceed to the second question and determine a penalty if she found that petitioner did have just cause to discipline Frazier, which the arbitrator determined it did not. Therefore, the court found that the arbitrator acted in excess of her authority. Significantly, petitioner did not submit this theory as a basis for vacating the award; rather, it only asserted that the award of back pay and benefits should be vacated because the arbitrator exceeded her authority based solely on the fact that Frazier wouldn't have been entitled to these benefits if out on FMLA leave, which he was in the process of applying for. As such, because Supreme Court sua sponte reached this dispositive issue, respondents were unable to address it. "The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54 [2d Dept 2014]; see Frank M. Flower & Sons, Inc. v North Oyster Bay Baymen's Assn., Inc., 150 AD3d 965, 966 [2d Dept 2017]). Thus, we cannot sustain Supreme Court's partial granting of the petition on this ground (see Matter of Level 3 Communications, LLC v Essex County, 129 AD3d 1255, 1256 [3d Dept 2015], lv denied 26 NY3d 907 [2015]).^[FN3]

Inasmuch as Supreme Court denied back pay and benefits based on a procedural issue, given that the record is fully developed and in the interest of judicial economy, we deem it appropriate to decide that portion of the petition seeking to vacate the award of back pay and benefits on the merits, rather than remitting the matter to Supreme Court (see generally Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 56). To that end, "[j]udicial review of arbitral awards is extremely limited. Pursuant to CPLR 7511 (b) (1), a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power" (Matter of Czerwinski [New York State Dept. of Corr. & Community Supervision], 173 AD3d 1325, 1326 [3d Dept 2019] [internal quotation marks and citations omitted]; see CPLR 7511 [b] [1] [iii]). "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact" (Matter of Barron [State of N.Y. Off. of Mental Health], 135 AD3d 1111, 1112 [3d Dept 2016] [internal quotation marks and citations omitted], lv denied 27 NY3d 905 [2016]). "[I]t is well settled that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself" (Matter of New York State Dept. of Corr. Servs. [New York State Corr. Officers & Police Benevolent Assn., Inc.], 100 AD3d 1066, 1068 [3d Dept 2012] [internal quotation marks and citations omitted]; see Matter of New York State Governor's Off. of Empl. Relations [New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO], 242 AD2d 756, 756 [3d Dept 1997]).

We discern no basis to vacate the arbitrator's award as to back pay and benefits. Notably, the CBA does not contain "a specifically enumerated limitation on the arbitrator's power" (Matter of Barron [State of New York Office of Mental Health], 135 AD3d at 1112). In fact, it does not explicitly limit the arbitrator's authority in any way other than stating that the arbitrator does not have the power to "amend, modify or delete any provision of the CBA," which does not set any limitations on the arbitrator's power to order the remedy that he or she sees fit (see Matter of Shenendehowa Cent. School Dist. Bd. of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 90 AD3d 1114, 1117 [3d Dept 2011], affd 20 NY3d 1026 [2013]; compare Matter of Spratley [New York State Dept. of Corr. & Community Supervision], 180 AD3d 1301, 1302 [3d Dept 2020]; Matter of Kocsis [New York State Div. of Parole], 41 AD3d 1017, 1019 [3d Dept 2007]). We find unpersuasive petitioner's argument that an award of back pay and benefits to the date of termination is in excess of the arbitrator's authority because it was ordered for a time period during which Frazier was only entitled to unpaid FMLA leave. Significantly, no proof was set forth regarding the dates, or any other information, as to the FMLA leave, thus any argument regarding such is speculative, at best. Moreover, since FMLA leave had not been granted prior to termination, once Frazier was terminated this issue became irrelevant. Therefore, the arbitrator's award should be confirmed.

Egan Jr., J.P., Clark, Ceresia and Fisher, JJ., concur.

ORDERED that the order is modified, on the law, with costs, by reversing so much thereof as vacated the award of back pay and benefits; said award reinstated and, as so modified, affirmed.

Footnotes

Footnote 1: Frazier had submitted an FMLA application and was required to submit certain medical certification by May 6, 2020, but he did not do so and was placed on unapproved leave status.

Footnote 2: Neither the grievance nor the transcript of the virtual arbitration hearing were submitted to Supreme Court and have not been included in the record on appeal.

Footnote 3: Were we to address this issue on the merits, we would find that, although awarding Frazier a remedy if the arbitrator found that petitioner did not have just cause to discipline him is not explicitly set forth in the stipulated issue statement, "[n]either the arbitration clause of the [CBA] nor the stipulated submission of issues for arbitration contained a specifically enumerated limitation on the arbitrator's power" (Matter of Barron [State of N.Y. Off. of Mental Health], 135 AD3d 1111, 1112 [3d Dept 2016], lv denied 27 NY3d 905 [2016]). Rather, the issue framing left open the possibility that the arbitrator would find that petitioner lacked just cause, sustain the grievance and thereafter would be "empowered to do justice and the award may well reflect the spirit rather than the letter of the [stipulation and the CBA]" (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418 [1978] [internal quotation marks and citation omitted]). Indeed, it defies logic to have the arbitrator determine that petitioner lacked just case for termination and to not fashion any remedy for Frazier, especially given that the grievance requested that he be "made whole." Moreover, as to the remedy, petitioner is only challenging the back pay and benefits, but not reinstatement, which, given petitioner's current limited view of the stipulated issue statement, would have also been in excess of authority. 

Applicant's claim for workers' compensation benefits based on his alleged participation in the "9-11 World Trade Center rescue, recovery or cleanup operations" denied

On September 11, 2001, petitioner [Claimant] was employed as a budget analyst for the New York City Office of Management and Budget [OMB]. In the weeks following the terrorist attacks, Claimant was assigned by OMB to work at offices in Queens and on Maiden Lane in Manhattan, before returning to his Park Place office in March 2002.

Claimant filed a "registration of his participation" in the World Trade Center [WTC] rescue, recovery and cleanup operations with the Workers' Compensation Board [Board] seeking workers' compensation benefits. The Board, among other things, ruled, that Claimant was not a participant in the WTC rescue, recovery and cleanup operations and his application for workers' compensation benefits was rejected. Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's determination noting:

1. Claimant testified that at the time of the WTC attacks he was providing budgetary analysis for the OMB's Parks and Landmarks Unit.

2. Claimant did not testify that he directly participated in the rescue, recovery and cleanup operations at the WTC site.

3. Claimant said that after the attack he was assigned to do "budgetary analysis for the rescue, recovery and cleanup" operations, although his general job duties remained the same."

4. Claimant did not provide any further testimony or other evidence as to what this analysis actually entailed or how the work was connected to the rescue, recovery and cleanup operations.

The Appellate Division opined the Board's factual finding that Claimant did not demonstrate that his job duties as a budget analyst had a direct or tangible connection to the rescue, recovery or cleanup operations at the WTC site is supported by substantial evidence and concluded that the Board did not abused its discretion in finding that Workers' Compensation Law Article 8-A "does not apply to this claim."

Click HERE to access the Appellate Division's decision posted on the Internet. 

 

Applicant for accidental disability retirement benefits must show the event resulting in the injury was not a risk inherent in the work being performed

A police officer [Officer] suffered a number of injuries when he fell while descending a staircase in his precinct. Officer's application for accidental disability retirement benefits was denied upon the ground that the incident did not constitute an accident within the meaning of §363 of the Retirement and Social Security Law.* Following a hearing and redetermination, the State Comptroller ultimately affirmed the hearing officer's decision. Officer commenced a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller's decision noting:

1. Officer bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's decision "will be upheld if supported by substantial evidence"'

2.  "An injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed".

3. A fall as a result of one's own misstep, without more, "is not so out-of-the-ordinary or unexpected as to constitute an accidental injury".

Although there was no dispute that Officer was engaged in the performance of his ordinary duties as a patrol officer at the time that he fell, he did not identify any defect in the stairs, which he used on a regular basis nor was he able to identify the substance or occurrence that "precipitated his fall." Officer's application for disability benefits under General Municipal Law §207-c "indicated that he simply 'lost [his] foot[ing]' on the stairs, while Officer's application for accidental disability retirement benefits indicated that he fell after he "stepped on a[n] unseen substance."

The Appellate Division said "Credibility determinations, as well as the resolution of any inconsistencies between the hearing testimony and documentary evidence, are matters for the Hearing Officer and [the Comptroller] to resolve". Given the inconsistencies in Officer's description of his fall, as well as his inability to identify a precipitating accidental event that was not a risk inherent in the work that he performed, the Appellate Division opined "the Hearing Officer rationally concluded that petitioner failed to prove that his fall was the result of anything other than a misstep."

Confirming the Comptroller's decision, the Appellate Division observed "... a fall occasioned by a misstep does not constitute an accident" and substantial evidence supports the Comptroller's denial of Officer's application for accidental disability retirement benefits.

* Officer did, however, receive performance of duty disability retirement benefits when he subsequently retired

Click HERE to access the Appellate Division's decision posted on the Internet.

Challenging an arbitration award based on allegations that award failed to meet the standards of finality and definiteness

Arguing that an arbitration should be vacated because it failed to meet the standards of finality and definiteness required by CPLR Article 75, the Niagara Falls Captains and Lieutenants Association, [Association] appealed Supreme Court's order denying its petition seeking to vacate an arbitration award. The Appellate Division rejected the Association's contention and affirmed the order.

Noting that it is well settled that "judicial review of arbitration awards is extremely limited", the Appellate Division, citing Barone v Haskins, 193 AD3d 1388, observed that "a court may vacate an arbitrator's award where 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'".

The court, considering the Association's argument that the arbitrator's award failed to meet the standards of finality and definiteness, opined "An award is indefinite or nonfinal within the meaning of the statute 'only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy'", citing Yoonessi v Givens, 78 AD3d 1622 and other decisions.

The Appellate Division said that contrary to the Association's contention, it concluded that the award sufficiently defined the parties' rights and obligations with respect to the controversy at issue* as the arbitrator's "award did not leave any matter submitted by the parties open for future contention, and thus, it was definite and final." 

In the words of the court, "The matter submitted by the parties concerned six specific alleged violations of the [collective bargaining agreement] CBA or past practice, and the award finally and definitely resolved that matter, determining that respondent did not violate either the CBA or past practice when it filled the vacancies as soon as was reasonably possible."

The Association had argued that the determination that past practice required positions to be filled as soon as reasonably possible will create new [sic] controversies between the parties in the future inasmuch "as there is no definition of what is reasonable." Rejecting this argument, the court said the award completely "dispose[d] of the controversy submitted", which was limited to three specific grievances involving six specific actions taken by the City of Niagara Falls. 

The award, said the Appellate Division, "fully resolved that controversy, denying the grievances and determining that the vacancies were filled in accordance with the past practice of filling vacancies as soon as reasonably possible." As there was nothing "open for future contention" with respect to those three grievances, the court concluded that the award "did not create any new controversy with respect to those specific grievances."

* The Association had contended that the City of Niagara Falls "violated the parties' collective bargaining agreement or past practice when it failed to immediately fill six specific vacancies."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York State Public Employment Relations Board's dismissal of the Petitioner's unfair labor practice charge against her union sustained

PERB concluded that the United Federation of Teachers [UFT] did not breach its duty of fair representation when it declined to demand Petitioner's grievance be submitted to arbitration. UFT had decided not to arbitrate Petitioner's grievance based on undisputed evidence that Petitioner was not between work assignments when she was struck by a car but instead had completed her last assignment of the day and was on her way home and that Petitioner was using her cell phone when crossing the street.

The Petitioner's employer's criteria for "line-of-duty-injury" [LODI] status required that the employee be "injured while performing duties connected with [her] assignment" and that the injury "could not have been foreseen or avoided with ordinary care by the injured employee." The Appellate Division opined that "UFT's decision was not so outside the 'wide range of reasonableness' afforded to unions in their representation of members as to be arbitrary," citing Matter of Civil Serv. Bar Assn., Local 237 Intl. v City of New York, 99 AD2d 264, affirmed 64 NY2d 188.*

Finding that PERB's decision regarding Petitioner's fair representation claim had "a rational basis," the Appellate Division said it "must affirm" PERB's determination.

In addition, citing Rochester Teachers Assn., 45 PERB ¶3033, the court sustained PERB's Administrative Law Judge's decision not to order UFT to produce its arbitration statistics as it was consistent with PERB's rules limiting the availability of discovery in improper practice charge disputes.

* In Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn, 268 AD2d 523, the Appellate Division, citing Matter of Blackburne, 87 N.Y.2d 660, observed that a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration,.

Click HERE to access the Appellate Division's decision posted on the Internet.