DiLorenzo v. Carey
| Decision Date | 26 May 1978 |
| Citation | 62 A.D.2d 583,405 N.Y.S.2d 356 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Louis T. DiLORENZO, Appellant, v. Hugh CAREY, as Governor of the State of New York, Ernest L. Boyer, as Chancellor of the State University of New York, and Albert W. Brown, as President of the State University College at Brockport, Respondents. James A. FARRELL, Appellant, v. Hugh CAREY, as Governor of the State of New York, Ernest L. Boyer, as Chancellor of the State University of New York, and Albert W. Brown, as President of the State University College at Brockport, Respondents. |
Joan de R. O'Byrne, Rochester, for appellant DiLorenzo (Matthew W. Finkin, Dallas, Tex., of counsel).
Harris, Maloney, Horwitz & Evans, Rochester, for appellant Farrell (Richard J. Evans, Rochester, of counsel).
Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for respondents (Paul O. Harrison, Rochester, of counsel).
Matthew W. Finkin, Dallas, Tex., for American Assn. of University Professors, amicus curiae.
Before MARSH, P. J., and DILLON, HANCOCK, DENMAN and WITMER, JJ.
Petitioner James A. Farrell appeals from an order and judgment which granted defendants' motion to dismiss the petition and vacate a temporary restraining order. Plaintiff Louis T. DiLorenzo appeals from a judgment which declared that any relief to which plaintiff was entitled could be obtained solely within the procedures established by the collective bargaining agreement between United Universities Professors, Inc. and the State University of New York.
In his petition petitioner Farrell asserts that his first appointment with State University College at Brockport was as a counsellor with the Campus School on September 1, 1965 for a two-year period. On September 12, 1967 he obtained a continuing appointment as Associate Professor. On October 30, 1970, he was transferred to the Department of Educational Research by defendant Albert W. Brown, President of the State University College at Brockport. In a letter from President Brown dated January 26, 1976 petitioner was notified that due to reductions in the operating budget of the State College at Brockport, his continuing appointment would be terminated effective February 29, 1976 and that the termination of the appointment constituted retrenchment. The petition alleged that eight persons were retrenched under the budget cutting at Brockport State College, five non-instructional personnel such as maintenance men and three academic personnel. It alleged that the Department of Educational Research must have been declared a retrenchment unit. No hearing was accorded petitioner prior to the termination notice. President Brown failed to consult with faculty senate of Brockport prior to retrenchment in order to establish the procedures and criteria with which to guide the retrenchment. In addition, President Brown did not first terminate in the Department of Educational Research untenured faculty members and two assistant professors before reaching petitioner, an associate professor, as required by the collective bargaining agreement. On March 11, 1976 petitioner filed a grievance under the collective bargaining agreement concerning his termination. The petition seeks an administrative or judicial hearing to determine the validity of petitioner's termination of his tenured position as an associate professor in the Department of Educational Research.
Plaintiff Louis T. Di Lorenzo asserts in his first cause of action that he obtained a term appointment as professor in the Department of Educational Research on May 20, 1970. He was granted a continuing appointment at the professorial level on November 10, 1972. He received a letter identical in form to that sent to petitioner Farrell notifying him that his continuing appointment as professor in the Educational Research Department would be terminated effective on February 29, 1976. On March 10, 1976 plaintiff filed a grievance with respect to the termination under the collective bargaining agreement. In his first cause of action plaintiff alleges that the Chancellor of the State University of New York failed to seek the advice of the faculty senate concerning the policy to be followed in retrenchment as required by the policy articles of the State University Trustees. He asserts the right to a hearing to determine the criteria for selecting the educational unit to be retrenched and the manner in which retrenchment would be accomplished within the chosen unit. The second cause of action refers to the collective bargaining agreement guidelines for retrenchment and a failure to follow them constituting a breach of the collective bargaining agreement.
The collective bargaining agreement between the State University of New York and the United University Professors, Inc. (UUP) in effect for years 1974 through 1976 provides for a three-step grievance procedure culminating in binding arbitration Article 7 of the collective bargaining agreement provides, inter alia :
"Grievance Procedure
§ 7.1 Purpose
The purpose of this Article is to provide a prompt and efficient procedure for the investigation and resolution of grievances. The orderly process hereinafter set forth shall be the sole method for the resolution of grievances. The State, UUP and employees shall endeavor initially to resolve grievances informally when feasible.
§ 7.2 Definition
a. A grievance is a dispute concerning the interpretation, application or claimed violation of a specific term or provisions of this Agreement.
b. The term grievance shall also be deemed to mean a claimed failure by the State to follow the procedural steps provided by Articles of the Policies relating to appointment and promotion of academic employees or relating to appointment, promotion or evaluation of professional employees (hereinafter referred to as 'Policy Articles').
c. A claim of improper or unjust discipline shall be processed in accordance with Article 19, Discipline, of this Agreement and shall not be subject to the grievance procedure contained in this Article."
The gravamen of Farrell's petition and Di Lorenzo's complaint concerns the termination of their positions with the State University College at Brockport, allegedly due to budgetary restraints (retrenchment). Both parties are members of a negotiating unit covered by the collective bargaining agreement and have, in fact, submitted grievances pursuant to the grievance procedures of that agreement. The collective bargaining agreement provides for terminating an academic employee's position with the State University of New York and its constituent units when retrenchment for budgetary or organizational reasons is sought to be accomplished by the University administration. Article 35 of the collective bargaining agreement provides with respect to retrenchment:
"Retrenchment
§ 35.1 Retrenchment shall be defined as the termination of the employment of any academic or professional employee during any appointment, other than a temporary appointment which may be terminated at any time, as a result of financial exigency, reallocation of resources, reorganization of degree or curriculum offerings or requirements, reorganization of academic or administrative structures, programs or functions or curtailment of one or more programs or functions University-wide or at such level of organization of the University as a campus, department, unit, program or such other level of organization of the University as the Chancellor or his designee deems appropriate.
b. Full-time academic employees holding term appointments before those holding continuing appointments.
c. Full-time professional employees holding term appointments before those holding permanent appointments.
" § 35.3 The State will notify the persons affected by retrenchment as soon as practicable recognizing that, where circumstances permit, it is desirable to provide the following notice of termination:
a. For those holding a term appointment, at least four months.
b. For those holding a continuing or permanent appointment, at...
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...either to subdivision 1 or subdivision 3 of CPLR 7803 (see generally, Siegel, New York Practice, § 561; see also, DiLorenzo v. Carey, 62 A.D.2d 583, 405 N.Y.S.2d 356, app. dsmd. 45 N.Y.2d 832, 409 N.Y.S.2d 212, 381 N.E.3d 610, cert. den. 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463).2 We poi......
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...seeking to assert them has waived them in a voluntary agreement such as a collective bargaining agreement. See Di Lorenzo v. Carey, 62 A.D.2d 583, 588-89, 405 N.Y.S.2d 356, appeal dismissed, 45 N.Y.2d 837, 409 N.Y.S.2d 1033, 381 N.E.2d 631 (1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, ......
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