Civil Service Employees Ass'n v. State of N.Y.

• Decision Date: 26 March 1981
• Citation: 438 N.Y.S.2d 619,80 A.D.2d 970
• Parties: In the Matter of The CIVIL SERVICE EMPLOYEES ASSOCIATION (Bernard Kramer), Respondent-Appellant, v. STATE OF NEW YORK (Department of Taxation and Finance), Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 619

438 N.Y.S.2d 619

80 A.D.2d 970

In the Matter of The CIVIL SERVICE EMPLOYEES ASSOCIATION (Bernard Kramer), Respondent-Appellant, v. STATE OF NEW YORK (Department of Taxation and Finance) Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

March 26, 1981.

Robert Abrams, Atty. Gen. (John Q. Driscoll, Asst. Atty. Gen., of counsel), for appellant-respondent.

George A. Roland, Albany, for respondent-appellant.

Before SWEENEY, J. P., and MAIN, CASEY, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Cross appeals from a judgment of the Supreme Court at Special Term, entered November 27, 1979 in Albany County, which denied petitioner's application, in a proceeding pursuant to CPLR article 75, to vacate the award of an arbitrator, except to the extent of modifying the award by directing back pay to petitioner for the period of his suspension.

On June 2, 1978, the petitioner, a grade 18 field tax auditor, was noticed for discipline in accordance with the collective bargaining agreement between petitioner CSEA, and respondent State of New York. It was alleged that petitioner, on three separate occasions within a four-day period, did not work a full seven and one-half-hour day in order to attend to private matters, and falsified his time records to conceal his absences. The notice further charged that when questioned about his actions, petitioner claimed he had information about misconduct on the part of his co-workers. He refused to divulge the names of the co-workers or the nature of the misconduct. Upon his refusal, the penalty of dismissal was proposed. Upon service of the notice of discipline, petitioner was suspended without pay, and elected to grieve his suspension by arbitration, according to the collective bargaining agreement.

In view of the limited scope of judicial review under CPLR 7511, the proof before the arbitrator more than justified the rationality of the award finding that petitioner was guilty of the misconduct alleged against him. Based upon the determination of misconduct, the arbitrator rejected petitioner's suspension as sought by the State, imposed a penalty of demotion to the position of Tax Technician, grade 14, and reinstated the petitioner without back pay.

Special Term denied the petition to vacate the demotion, but modified the award to the extent of directing payment to petitioner of back pay for the period of suspension. We agree with Special Term that the demotion should not be vacated. We...