Woods v. State Univ. of N.Y.

• Decision Date: 26 May 2016
• Docket Number: 521502.
• Citation: 33 N.Y.S.3d 484,139 A.D.3d 1322,2016 N.Y. Slip Op. 04084
• Parties: In the Matter of Norman WOODS et al., Appellants–Respondents, v. STATE UNIVERSITY OF NEW YORK et al., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1322

33 N.Y.S.3d 484

2016 N.Y. Slip Op. 04084

In the Matter of Norman WOODS et al., Appellants–Respondents,

v.STATE UNIVERSITY OF NEW YORK et al., Respondents–Appellants.

521502.

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

May 26, 2016.

Lippes Mathias Wexler Friedman LLP, Albany (Sarah M. Coligan of counsel), for appellants-respondents.

Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondents-appellants.

Before: PETERS, P.J., LAHTINEN, ROSE, LYNCH and AARONS, JJ.

LYNCH

, J.

Cross appeal from a judgment of the Supreme Court (McNamara, J.), entered March 16, 2015 in Albany County, which, in a proceeding pursuant to CPLR article 78 and 7503, among other things, converted the proceeding into a proceeding pursuant to CPLR 7511

to confirm an arbitration award.

Petitioner Norman Woods began working as a security services assistant 1 with respondent State University of New York (hereinafter SUNY) in 2001. In this capacity, he was a member of a bargaining unit represented by petitioner New York State Correctional Officers and Police Benevolent Association, Inc. (hereinafter NYSCOPBA). In March 2013, Woods received a notice of discipline issued in accordance with the collective bargaining agreement (hereinafter CBA) negotiated by and between respondents and NYSCOPBA. In October 2013, following an arbitration held pursuant to the CBA, an arbitrator issued an award wherein he determined that Woods was guilty of four of the five asserted charges and imposed a penalty of a fine and, as relevant here, “a one (1) year probation period.” In June 2014, on the same day that his supervisor issued Woods a negative “final” probationary evaluation, SUNY's director of human resources wrote to advise that Woods' “disciplinary probationary appointment” at SUNY was terminated. NYSCOPBA filed a grievance to challenge the June 2014 termination. In response, SUNY's director of employee relations wrote to NYSCOPBA to advise that Woods was not disciplined and “returned” the grievance. Petitioners commenced this proceeding seeking to compel arbitration pursuant to CPLR 7503

, or, alternatively, to vacate and annul the termination pursuant to CPLR article 78. Supreme Court converted the proceeding to one seeking to confirm the award pursuant to CPLR 7511 and directed the parties to seek clarification of the October 2013 arbitration award. Both parties now appeal.

As a general rule, public policy favors the resolution of labor disputes through arbitration (see Matter of Town of Haverstraw [Rockland County Patrolmen's Benevolent Assn.], 65 N.Y.2d 677, 678, 491 N.Y.S.2d 616, 481 N.E.2d 248 [1985]

). That is not to say that every dispute is arbitrable; rather, on a petition to compel arbitration, we consider “two distinct inquiries,” first, whether arbitration of the issue is authorized by the Taylor Law and is permitted as a matter of public policy, and, second, whether the parties agreed in the CBA to submit the issue to arbitration (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d 132, 137–138, 688 N.Y.S.2d 463, 710 N.E.2d 1064 [1999] ; see

Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 N.Y.2d 348, 355, 434 N.Y.S.2d 185, 414 N.E.2d 685 [1980] ).

Initially, we reject respondents' argument that Woods waived the right to pursue arbitration of the issue presented. Although such right may be waived (see Matter of Campbell [State of New York], 37 A.D.3d 993, 994, 830 N.Y.S.2d 806 [2007]

), here, Woods was not a party to a last chance agreement with a clear and unequivocal waiver negotiated to resolve pending disciplinary charges. Rather, we are faced with the dismissal of a probationary employee with nearly 12 years of service in the bargaining unit (compare id. ). There is no apparent question that, generally, arbitration of an employee's dismissal from service with a public employer is authorized by the Taylor Law and not against public policy (see

Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 N.Y.2d at 355, 434 N.Y.S.2d 185, 414 N.E.2d 685 ; Board of Educ., Mt. Sinai Union Free School Dist. v. New York State United Teachers, 51 N.Y.2d 994, 996, 435 N.Y.S.2d 977, 417 N.E.2d 89 [1980] ). Nor do respondents claim that the CBA includes an arbitration clause that prohibits or limits an arbitrator's authority to consider the issue.¹ Instead, respondents contend that by virtue of the October 2013 arbitration award, Woods was a probationary employee, and the parties did not agree to arbitrate issues regarding the termination of probationary employees. The issue presented is thus focused on the second “distinct inquir[y],” and our role is to determine whether there is a “reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” (Matter of Board of Educ. of Watertown City School District [Watertown Educ. Assn.], 93 N.Y.2d at 143, 688 N.Y.S.2d 463, 710 N.E.2d 1064

).

Here, the CBA provides that “[d]iscipline shall be imposed upon employees otherwise subject to the provisions of Sections 75

and 76 of the Civil Service Law only pursuant to this Article, and the procedure and remedies herein provided shall apply in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law which shall not apply to employees.” Further, it defines “discipline” as including “dismissal from service” and provides that “[d]iscipline shall be imposed only for just cause.” We are mindful that one of the referenced statutes provides that certain employees in the classified civil service who have completed a probationary period of employment may not be disciplined “except for incompetency or misconduct shown after a hearing upon stated charges” (Civil Service Law § 75[1] ). Contrary to respondents' interpretation, we do not find that the cited provision of the CBA unambiguously excludes Woods from its coverage. Indeed, it can be read to wholly supplant the referenced provisions of the Civil Service Law and to require a demonstration of “just cause” to discipline any employee in the bargaining unit. While the dissent has concluded that Woods was not disciplined, it is for an arbitrator to interpret and apply the CBA, and we do not have authority to consider the merits of the argument (see

Matter of New York City Tr. Auth. v. Transport Workers' Union of Am., Local 100, AFL–CIO, 6 N.Y.3d 332, 336, 812 N.Y.S.2d 413, 845 N.E.2d 1243 [2005] ; Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d at 142, 688 N.Y.S.2d 463, 710 N.E.2d 1064 ; Matter of Massena Cent. School Dist. [Massena Confederated School Employees' Assn., NYSUT, AFL–CIO], 64 A.D.3d 859, 864, 882 N.Y.S.2d 539 [2009] ). Since the CBA provision is ambiguous, an arbitrator must decide whether it governs Woods' dismissal from service, and Supreme Court should have granted the petition to compel arbitration (see

Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d at 143, 688 N.Y.S.2d 463, 710 N.E.2d 1064 ; Board of Educ., Mt. Sinai Union Free School Dist. v. New York State United Teachers,

51 N.Y.2d at 996, 435 N.Y.S.2d 977, 417 N.E.2d 89 ; Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 N.Y.2d at 355, 434 N.Y.S.2d 185, 414 N.E.2d 685 ; Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v. Barni, 49 N.Y.2d 311, 314–315, 425 N.Y.S.2d 554, 401 N.E.2d 912 [1980] ). In light of this determination, we decline to consider the parties' remaining contentions.

PETERS

, P.J., and AARONS, J., concur.

ROSE

, J. (dissenting).

We respectfully dissent. Here, we are not faced with a collective bargaining agreement (hereinafter CBA) containing a broad arbitration clause. Instead, as the majority notes, the record before us includes only article 8 of the CBA, and the arbitration provided for therein is narrowly limited to disciplinary actions. In considering the prescribed second-step question of “ ‘whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration’ ” (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d 132, 138, 688 N.Y.S.2d 463, 710 N.E.2d 1064 [1999]

, quoting Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 N.Y.2d 509, 513, 399 N.Y.S.2d 189, 369 N.E.2d 746 [1977] ), we cannot agree that the termination of petitioner Norman Woods' probationary employment can reasonably be interpreted as a disciplinary action.

Woods was placed on probation as one of two penalties imposed for the charges of dereliction of his duties that were found to have been proven in his 2013 disciplinary proceeding. Prior to the end of his one-year probationary period, he was terminated as a result of a final probationary evaluation, which found that his job performance was unsatisfactory. He was not charged with misconduct, dereliction of his duties or other actions that would typically give rise to disciplinary action under article 8 of the CBA. Nonetheless, the majority finds an ambiguity as to whether Woods' termination was a disciplinary action. In our view, the majority reads too much into the term “disciplinary probation,” a term that is not used in article 8 or in the original decision of the prior arbitrator imposing probation as a penalty.

When we confront this question of whether the parties agreed to arbitrate issues regarding the termination of probationary employees, the second-step inquiry requires us to “merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 N.Y.2d at 143, 688 N.Y.S.2d 463, 710 N.E.2d 1064

; see

Matter of Odessa–Montour Cent. School Dist. [Odessa–Montour Teachers Assn.],

271 A.D.2d...