Antinore v. State

• Decision Date: 18 July 1975
• Citation: 49 A.D.2d 6,371 N.Y.S.2d 213
• Parties: , 90 L.R.R.M. (BNA) 2127, 80 Lab.Cas. P 53,996 Donald ANTINORE, Respondent, v. The STATE of New York and its Agents et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 213

371 N.Y.S.2d 213

49 A.D.2d 6, 90 L.R.R.M. (BNA) 2127,

80 Lab.Cas. P 53,996

Donald ANTINORE, Respondent, v. The STATE of New York and its Agents et al., Appellants.

Supreme Court, Appellate Division, Fourth Department.

July 18, 1975.

Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for appellants (John Q. Driscoll, Albany, of counsel).

Donald E. Grossfield, Rochester, for respondent.

Before MARSH, P.J., and CARDAMONE, MAHONEY, DEL VECCHIO and WITMER, JJ.

DEL VECCHIO, Justice:

In this case we consider the validity of a contract provision for binding arbitration in disciplinary proceedings involving civil service employees. The provision is contained in an agreement negotiated between the State of New York and the Civil Service Employees Association (CSEA) as representative of the negotiating unit to which plaintiff belonged.

For several years sections 75 and 76 of the Civil Service Law have provided the procedures and remedies available to covered public employees to challenge disciplinary action taken or proposed to be taken against them by their superiors. A 1970 amendment to section 76 permitted the statutory provisions to be supplemented or modified by a collective bargaining agreement entered into by the State and an agent of its employees (L.1970, c. 458, § 1). Pursuant to that amendment, the State and its employees' collective bargaining agent, CSEA, agreed, effective April 1, 1972, to an alternate method of disposing of charges against an employee by which the employee might, if he wished, elect to have the charges determined by a hearing officer whose decision as to guilt or innocence was made non-reviewable, either by the Civil Service Commission or by proceedings in court pursuant to CPLR Article 78.

In 1972 section 76 of the Civil Service Law was again amended--this time to permit sections 75 and 76 of the statute to be 'supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter' (L.1972, c. 283, § 1). Pursuant to that amendment, on June 20, 1973 the State and CSEA executed an agreement which provided binding arbitration as the method of disposing of challenges to disciplinary action addressed to an employee and removed--even as an option--resort to the Civil Service Commission or to the court through an Article 78 proceeding. The agreement provided in part: 'The arbitrator's decision with respect to guilt or innocence, penalty or probable cause for suspension shall be final and binding upon the parties * * *' and 'The decision and award of the arbitrator shall be final and binding consistent with the provisions of CPLR Article 75.' There is no dispute that under the language of CPLR 7511 judicial disturbance of an award following arbitration in which both parties participated is limited to instances in which (1) there had been corruption, fraud or misconduct in procuring the award, (2) the arbitrator was not impartial or exceeded his power or (3) there was a failure to follow the procedures set forth in Article 75. The section does not authorize rejection of an award either for lack of a required quantum of supporting evidence or because of error by the arbitrator in the application of the law.

It is the legislation of 1972 and the agreement of June 20, 1973 that are challenged and have been found violative of the employee's constitutional rights in this declaratory judgment action. The action was instituted by a child care worker at a State Training School of the New York State Division of Youth after service on him of notice of charges and prospective termination of employment. Upon defendants' motion for summary judgment, Special Term has granted judgment for plaintiff, declaring that the article of the collective bargaining agreement that provides the procedure for arbitration of disciplinary disputes deprives plaintiff of due process and equal protection guaranteed by the Fourteenth Amendment of the United States Constitution, that plaintiff has not waived these guarantees and that the provisions of section 76 of the Civil Service Law are unconstitutional to the extent that they permit sections 75 and 76 of that law to be replaced by the contract provisions as the sole and exclusive disciplinary procedure for the covered employees.

Plaintiff and the court at Special Term, together or separately, have identified several respects in which it is asserted that the arbitration procedure prescribed by the collective bargaining agreement falls short of providing the due process to which plaintiff is entitled before being deprived of the property right in his tenured position enjoyed by him. Among these alleged shortcomings are included the absence of a requirement that the arbitrator state the reasons for his decision, thus impairing its reviewability, the mandate that either party desiring a transcript of the disciplinary arbitration hearing must provide for it at his own expense and furnish copies to the arbitrator and the other party, the absence of need for the arbitrator to be bound by rules of law and the lack of explicit assurance of the right to present witnesses and or confrontation of adverse witnesses. Both plaintiff and Special Term view as a denial of equal protection, and plaintiff conceives it also as a deprivation of due process, that employees covered by the agreement of June 20, 1973--unlike other public employees--are precluded from obtaining a judicial review of the arbitrator's determination in which inquiry may be made as to the substantiality of evidence underlying the determination.

Certain it is that at least some of the foregoing characteristics ascribed to the procedure provided by the collective bargaining agreement cast doubt upon its constitutional sufficiency, and, but for our conclusion with regard to waiver next to be discussed, we would identify provisions which would need to be added to the explicit contractual arbitration scheme--perhaps by a broad reading of the agreement or of CPLR Article 75 or both, if permissible--in order that the due process and equal protection requirements might be satisfied. To sustain the constitutionality of the arbitration provisions of Article 33 of the instant agreement, we believe it would be necessary to read into such provisions the procedural safeguards contained in Article 75 of the CPLR governing arbitration generally, i.e., CPLR 7506(c), (d) (right to present evidence, cross-examine witnesses, determination to be made on evidence produced; right to be represented by counsel) and section 7507 (award to be made in writing) (See Mount St. Mary's Hospital v. Catherwood, 26 N.Y.2d 493, 311 N.Y.S.2d 863, 260 N.E.2d 508).

The cited case makes clear, however, that due process requirements--and we think equal protection as well--are not relevant...