Opinion
Index No. EF2022-70520
08-15-2023
In the Matter of the Application of City of Glens Falls (Employer), Petitioner, v. CSEA, Local 1000 AFSCME, AFL-CIO, CITY OF GLENS FALLS UNIT #9001-00, LOCAL 857 (Union, Employee) on behalf of Grievant Christopher Mason, Respondent.
Nichole C. Fish, Glens Falls, for petitioner. Daren Rylewicz, Civil Service Employees Association, Inc., Albany (Eric E. Wilkie of counsel), for respondents.
Unpublished Opinion
Nichole C. Fish, Glens Falls, for petitioner.
Daren Rylewicz, Civil Service Employees Association, Inc., Albany (Eric E. Wilkie of counsel), for respondents.
ROBERT J. MULLER, J.
The facts of this matter are set forth in a prior decision of this Court (76 Misc.3d 1214[A], 2022 NY Slip Op 50940[U] [Sup Ct, Warren County 2022]), and will not be repeated at length. Briefly stated, Christopher Mason was terminated from his employment with petitioner following a physical altercation with a co-worker. Mason thereafter filed a grievance, which petitioner initially rejected as untimely and then verbally denied. The dispute proceeded to arbitration in accordance with the terms of the Collective Bargaining Agreement (hereinafter CBA) governing Mason's employment.
On June 11, 2021, the arbitrator issued an Opinion and Award finding that the grievance should be considered notwithstanding its untimeliness and, further, that the penalty of termination was excessive. The arbitrator concluded that Mason should have been suspended and directed petitioner to "return [Mason] to the work force [within 10 days] without back pay and benefits. Petitioner complied with this directive but placed Mason on administrative leave, commencing this proceeding by Order to Show Cause seeking to vacate the arbitrator's Opinion and Award. Petitioner also sought a Temporary Restraining Order (TRO) directing that Mason be placed on unpaid administrative leave pending the outcome of the proceeding, which TRO was denied upon issuance of the Order to Show Cause. The decision denying the TRO stated as follows:
"[I]t does not appear - at this juncture, anyway - that petitioner is likely to prevail in this proceeding. CPLR 7511 (b) (1) provides, in pertinent part:
'[An arbitration] award shall be vacated on the application of a party who... participated in the arbitration... if the court finds that the rights of that party were prejudiced by:
'(i) corruption, fraud or misconduct in procuring the award; or
'(ii) partiality of an arbitrator appointed as a neutral...; or
'(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
'(iv) failure to follow the procedure of this article....'
"[Here, p]etitioner contends that the arbitrator exceeded his power and the award must therefore be vacated - but a review of the record contradicts this contention. Indeed, the Opinion and Award includes a balanced discussion of all the relevant facts and concludes that the charges should be sustained, but with a lesser penalty" (76 Misc.3d 1214[A], 2022 NY Slip Op 50940[U], at *4).
Respondent has now submitted a verified answer with supporting affirmation and memorandum of law, and petitioner has submitted a reply affirmation in further support of the requested relief. In this reply, petitioner first contends as follows:
"As a threshold matter, the opposition of the Union have not been verified, which is necessary in this time [sic] of proceeding. Moreover, there is no affidavit from [Mason], as he is the only one with personal knowledge relative to this matter.
"The City of Glens Falls filed a verified petition, signed by Judy Villa-White, the head of Human Resources, which requires a verified Answer, by someone with personal knowledge of the underlying facts.
"Specifically, the CSEA cannot verify the underlying issues relative to the City's Workplace and Harassment policy, as they do not have personal knowledge of the same."
The Court finds these contentions to be without merit. As required under CPLR 7804 (d), respondent's answer was verified by Richard Bebo, its statewide secretary. Petitioner has made no showing whatsoever that Bebo is without personal knowledge of the underlying facts. In this regard, it must be noted that Mason was represented by respondent throughout the entirety of the arbitration, and it is the arbitration - not Mason's underlying altercation with his co-worker - that forms the basis of the Court's inquiry. Under the circumstances, it cannot be said that Mason is the only individual with personal knowledge of the matter.
Inasmuch as petitioner contends that respondent failed to verify the underlying issues relative to petitioner's Workplace and Harassment policy, it is unclear why respondent would need to verify these issues. They were raised in the petition and as such, were verified by petitioner's head of human resources. Indeed, paragraph "7" of the petition alleges that petitioner has its own Workplace Violence policy, with this paragraph then being admitted in the answer.
Petitioner next challenges the Court's finding that petitioner "appears to conflate the filing of a grievance with the filing of an appeal, [with e]ach constituting a separate step in the 4-step grievance process" (76 Misc.3d 1214[A], 2022 NY Slip Op 50940[U], at *4). This finding addressed petitioner's argument that the grievance was not filed in a timely manner and, as such, had to be deemed settled under § 13.3.4 of the CBA, which provides that "[t]he failure by the grievant... to file an appeal within the time limits specified shall be deemed to be a settlement of the grievance." Petitioner contends that the Court erred in making such finding, stating as follows:
"[T]he CBA does use the word appeal and grievance separately; however,... if the Court calculates all the time limits of each Step of the grievance process, [Mason] was late for the grievance, which would make him late for the Step 2 and Step 3 of the 'appeal' process as well, thus the grievant continued to fail to follow the CBA procedure and was late on all subsequent steps of the process...."
The Court finds this contention to be without merit as well. § 13.2.1 (a) of the CBA sets forth "Step 1" of the grievance process, which provides that "[t]he employee shall present the grievance in writing on forms to be provided by the City to the employee's immediate supervisor not later than ten (10) work day[s] after the date on which an act or omission giving rise to the grievance occurred or became known to the employee." § 13.2.1 (b) of the CBA then sets forth "Step 2," providing that "[i]n the event the employee wishes to appeal an unsatisfactory decision in Step 1, the appeal must be presented to the Department Head... in writing on forms to be provided by the City within ten (10) work days [of] the receipt of [the] Step 1 decision." Finally, § 13.2.1 (c) of the CBA sets forth "Step 3" of the process and states that "[a]n appeal from an unsatisfactory decision at Step 2 shall be presented by the employee in writing on forms to be provided by the City to the Mayor within ten (10) work days of the receipt of the Step 2 decision."
In view of this language, petitioner is incorrect in its contention that late filing of the Step 1 grievance would automatically render the Step 2 and Step 3 filings late as well. The timelines are entirely separate, with the Step 2 filing contingent upon the date of receipt of the Step 1 decision and the Step 3 filing likewise contingent upon the date of receipt of the Step 2 decision. Under the circumstances, petitioner's reliance on § 13.3.4 of the CBA remains misplaced.
To the extent petitioner contends that respondent's failure to comply with the timelines set forth in the CBA otherwise renders the grievance procedurally defective, there is nothing to suggest that the arbitrator exceeded his power in finding that the grievance should be considered. "'An arbitrator is charged with the interpretation and application of the parties' agreement and courts are obligated to give deference to the decision of the arbitrator'" (Matter of SUNY Broome Community Coll. [Faculty Assn. of SUNY Broome Community Coll.], 209 A.D.3d 1236, 1238 [3d Dept 2022], quoting Matter of Delaney Group, Inc. [Holmgren Enters., Inc.], 126 A.D.3d 1212, 1215 [3d Dept 2015] [internal quotation marks, brackets, ellipsis and citation omitted]). Here, the arbitrator was presented with evidence that petitioner failed to provide either Mason or his immediate supervisor with the forms necessary to file the grievance, as required under § 13.2.1 (a) of the CBA. The arbitrator's decision that the grievance should be considered notwithstanding its untimeliness is therefore supported by the record.
The remaining arguments set forth in petitioner's reply - namely, that the grievance lacks specificity and was signed "by a CSEA representative[] who lacked personal knowledge" - were neither raised in the petition nor during the arbitration and, as such, are not properly before the Court (see Kurbatsky v Intl. Conference of Funeral Serv. Examining Bds., 162 A.D.3d 1379, 1380 n 1 [3d Dept 2018]; Matter of Gerber Homes & Additions, LLC [Lang], 153 A.D.3d 1596, 1597 [4th Dept 2017]; Matter of Jay's Distribs., Inc. v. Boone, 148 A.D.3d 1237, 1241 [3d Dept 2017], lv denied 29 N.Y.3d 918 [2017]; Matter of Rosenfelder [Community First Holdings, Inc. - Commissioner of Labor], 137 A.D.3d 1438, 1440 [3d Dept 2016]).
In sum, the Court remains unpersuaded that petitioner is entitled to prevail in this proceeding. Since denial of the TRO, petitioner has failed to proffer anything further to suggest that the arbitrator exceeded his authority, or that it is otherwise entitled to an Order vacating the arbitration award (see CPLR 7511 [b] [1]; see also Rochester City School Dist. v Rochester Teachers Assn., 41 N.Y.2d 578, 582 [1977]; Matter of SUNY Broome Community Coll. [Faculty Assn. of SUNY Broome Community Coll.], 209 A.D.3d at 1238-1239; Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO [New York State Dept. of Corr. & Community Supervision], 188 A.D.3d 1534, 1535-1536 [3d Dept 2020]). The relief requested is thus denied and the petition dismissed.
Therefore, having considered NYSCEF document Nos. 1 through 20, 42 through 54 and 56, and oral argument having been heard on August 1, 2023 with Nichole C. Fish, Esq. appearing on behalf of petitioner and Eric E. Wilke, Esq. appearing on behalf of respondent, it is hereby
ORDERED AND ADJUDGED that the relief requested is denied and the petition dismissed.