Town of Babylon v. Carson

• Decision Date: 27 November 2013
• Parties: In the Matter of TOWN OF BABYLON, appellant, v. Stacy CARSON, et al., respondents.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 951
976 N.Y.S.2d 501
2013 N.Y. Slip Op. 07980

In the Matter of TOWN OF BABYLON, appellant,
v.
Stacy CARSON, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 27, 2013.

Bartlett, McDonough & Monaghan, LLP, White Plains, N.Y. (Craig V. Rizzo, Patricia D'Alvia, and Robert G. Vizza of counsel), for appellant.

Vitale and Levitt, P.C., Melville, N.Y. (Gregory M. Mineo of counsel), for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to CPLR article 75, in effect, to vacate so much of an arbitration award dated November 8, 2010, as, after a hearing, reduced the penalty imposed by the petitioner, Town of Babylon,

[976 N.Y.S.2d 502]

upon an employee so as to restore 10 days of pay and reduce that employee's term of probation from six months to three months, in which Stacy Carson and Civil Service Employees Association, Inc. (CSEA), Local 1000, AFSCME, AFL–CIO, cross-petitioned to confirm the award, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Pastoressa, J.), entered September 28, 2011, which, upon a decision of the same court dated June 27, 2011, denied the petition and granted the cross petition.

ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, and the cross petition is denied.

After a workplace incident, the Town of Babylon gave notice, dated April 30, 2010, to its employee, Stacy Carson, then a clerk typist at the Town Clerk's Office, that she was suspended without pay for up to 30 days, pending a hearing on four charges of misconduct. Following an administrative hearing, the hearing officer sustained all four charges of misconduct against Carson, and recommended that Carson be suspended for 30 days without pay and placed on probation for a period of six months.

Thereafter, pursuant to the collective bargaining agreement (hereinafter the CBA) between the Town and Carson's union, the Civil Service Employees Association, Inc. (CSEA), Local 1000 (hereinafter the Union), which was effective from January 1, 2009, through December 31, 2016, the Union, on Carson's behalf, filed a grievance and demand for arbitration with the New York State Public Employees Relation Board. Prior to taking testimony at the arbitration hearing, the arbitrator stated that “the first item of business is to stipulate the issue.” The Town's attorney agreed, and invited the Union's attorney to set forth the issues to be determined. The following colloquy ensued:

“[UNION'S ATTORNEY]: What we spoke about was, was there just cause to suspend Stacy Carson for 30 days and to impose a six-month probationary period for her conduct on April 30, 2010 relating to her supervisor ... and 30–day suspension is without pay.

...

“[THE ARBITRATOR]: And if not, what shall be the remedy?

“[UNION'S ATTORNEY]: Correct, and excuse me, I'm sorry, was progressive discipline considered when imposing that sanction.

...

“[THE ARBITRATOR]: And if not, what shall the remedy be?

“[UNION'S ATTORNEY]: Correct.”

The parties then proceeded with the arbitration.

In an award dated November 8, 2010, made after the hearing, the arbitrator concluded that the hearing...