Labor & Employment Law

Eric Fetterly had a dispute with Massena Central School District concerning his (1) Absenteeism, (2) the impact of his workers' compensation leave on his leave credits. Fetterly filed three grievances that the Massena Confederation of School Employees? Association ultimately submitted to arbitration on Fetterly's behalf, claiming violations of the collective bargaining agreement.

The arbitrator ruled in favor of the Association on all three grievances.

The School District moved to vacate the award pursuant to CPLR §7511(b)(1)(iii), contending that the arbitrator exceed his authority in promulgating the three awards, relying on what it contended was the controlling provision in the Collective Bargaining Agreement, which provided as follows:

"The arbitrator shall regard the provisions of [the CBA] as the basic principles and fundamental law governing the relationship of the parties. The arbitrator's function is to interpret the provisions of [the CBA] and to decide cases of alleged violation of such provisions. The arbitrator shall not supplement, enlarge, diminish, or alter the scope of meaning of [the CBA] and its appendices as it exists from time-to-time, or any provisions therein, nor entertain jurisdiction of any subject matter not covered thereby (except to the extent necessary to determine his [or her] jurisdiction). Without limiting the foregoing, the subjects of health insurance and retirement are by this section excluded from arbitration."

Supreme Court granted the district?s motion, holding that the arbitrator has exceeded his authority in making the three awards.

The Appellate Division agreed in part, noting that arbitration awards may be vacated only ?where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

The CBA defined a grievance as "a complaint by an employee or [the district] of an alleged violation of any of the terms and conditions of [the CBA]." The CBA then limits the scope of arbitration, providing: "Not all grievances are subject to arbitration. The scope of arbitration and the jurisdiction of the arbitrator are defined under 'Jurisdiction of the Arbitrator.'"

The first grievance required the arbitrator to determine whether Fetterly had earned vacation and additional leave credits during his workers' compensation leave. At the outset, the arbitrator found: "The [CBA] is silent on the question of how, or even if, a workers' compensation absence affects an employee's vacation entitlements?.? He found that Fetterly was an "eligible employee" within the meaning of the CBA and that workers' compensation leave did not interrupt his continuous service.

The Appellate Division agreed that in this ruling the arbitrator had exceed his authority. Although the arbitrator had jurisdiction to determine if ?the CBA was ?silent? on the subject of the grievance, once he determined that it was ?silent? he was forbidden by the explicit terms of the agreement, which both created and limited his power, to entertain jurisdiction of the controversy. Accordingly, said the Appellate Division, Supreme Court therefore correctly vacated that element of the award on the ground that it "manifestly exceeds a specific, enumerated limitation on the arbitrator's power."

Such was not the case, however, with respect to the second and third stipulated issues submitted to arbitration.

As to the second grievance, the arbitrator determined that the dispute was a grievance within the meaning of the CBA because the parties had so treated it throughout the five-step grievance process and because the grievance's "Specifics of Violation" alleged violations of the CBA.

However, consistent with the stipulation of the issue to be resolved as submitted by the parties, he did not reach the merits of this grievance.

Accordingly, said the Appellate Division, Supreme Court was incorrect in vacating this segment of the award.

The Appellate Division noted that the arbitrator?s characterization of the contract provision as "frustratingly vague" does not permit the court to substitute its judgment for the arbitrator's as to whether the provision covered the subject at issue. Indeed, said the Appellate Division, the arbitrator's interpretation of the CBA on this point would have been "insulated from judicial review even if he had misconstrued or disregarded its plain meaning."

Turning to the third grievance, the Appellate Division said that the arbitrator found that the district?s placement of a letter, the contents of which the Association claimed constituted disciplinary action, in Fetterly's personnel file violated paragraph C of article XV of the CBA.

The arbitrator ruled that insertion of the letter in the file "ignores article XVIII [of the CBA] and the long-established principles it warrants." The union argued the letter placed in Fetterly?s file was a reprimand that constituted discipline without just cause in violation of the CBA. The arbitrator rejected the district's argument that ?the letter was merely a counseling memorandum and that its purpose was to counsel or advise rather than to discipline? Fetterly.

Supreme Court held that the arbitrator exceeded his authority in considering the intent of district's superintendent in writing the letter and that its placement in Fetterly's file did not violate the CBA. In addition, Supreme Court held that ?the letter did not constitute discipline or dismissal? but was a ?counseling memoranda,? which could be placed in an employee personnel.*

As the CBA directs the arbitrator to "hear a case or cases in full with findings of fact," the Appellate Division said that it was appropriate for the arbitrator to consider the superintendent's intent along with other factors, such as the letter's tone and content and the absence from the record of clear evidence that any counseling had taken place, in the course of resolving the parties' disagreement as to whether the letter constituted "discipline" within the meaning of the CBA.

The Appellate Division ruled that the arbitrator?s determination that the letter's intent was disciplinary is a factual finding which, even if erroneous, is not subject to judicial review. Further, even if the arbitrator's decision that the letter was disciplinary in nature resulted from an error of law, vacatur would not be warranted, since "absent a provision in the arbitration clause, arbitrators are not bound by principles of substantive law and rules of evidence."

The Appellate Division modified Supreme Court?s ruling, reversing so much of that decision that vacated the arbitrator's determinations on Grievance Two and Grievance Three.

* In Holt v Board of Education, 52 N.Y.2d 625, the Court of Appeals said that performance evaluations and letters of criticism placed in the employee?s personnel file were not ?disciplinary penalties? and thus could be placed there without having to first hold a disciplinary proceeding. In contrast, where ?constructive criticism? imposed, in effect, a penalty, it constitutes disciplinary action and such action has been found to serve to frustrate an employee?s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure. The decisions of the Commissioner of Education in Irving v Troy City School District, CEd 14,373, and Fusco v Jefferson County School District, CEd 14,396. illustrate this concept.

The Irving is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume39/d14373.htm

The Fusco decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume39/d14396.htm

The Fetterly decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05674.htm

Full post as published by New York Public Personnel Law on July 07, 2009 (boomark / email).