Opinion
Index No. 909681-21
04-11-2022
In the Matter of the Application of The COUNTY OF ALBANY, Petitioner, v. CIVIL SERVICE EMPLOYEE ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, Albany County Local 801, and Jessie J. Burby, Respondent.
Eugenia K. Condon, Albany County Attorney, Attorney for Petitioner, By: John E. Maney, Esq., 112 State Street, Room 600, Albany, New York 12207 Daren J. Rylewicz, Esq., Attorney for Respondent, Civil Service Employees Association, Inc., By: Scott Lieberman, Esq., Box 7125, Capitol Station, 143 Washington Avenue, Albany, New York 12224
Eugenia K. Condon, Albany County Attorney, Attorney for Petitioner, By: John E. Maney, Esq., 112 State Street, Room 600, Albany, New York 12207
Daren J. Rylewicz, Esq., Attorney for Respondent, Civil Service Employees Association, Inc., By: Scott Lieberman, Esq., Box 7125, Capitol Station, 143 Washington Avenue, Albany, New York 12224
David A. Weinstein, J. This matter is before the Court on a petition from Albany County (the "County") pursuant to Article 75 of the CPLR, seeking to vacate an arbitration award dated August 23, 2021, in which the arbitrator allegedly violated a strong public police against violence in the workplace by modifying the County's termination of respondent Jesse Burby, and instead imposing a lesser penalty of a two-year suspension without pay, with a year of probation upon his return to work (Pet ¶¶ 1, 18). Petitioner seeks to have the arbitrator's determination vacated on public policy grounds, and the matter remanded to the arbitrator or a different arbitrator for the imposition of an appropriate penalty.
Respondents Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801 and Mr. Burby (collectively "CSEA" or "Respondents") oppose the application, arguing that there is no public policy mandating Burby's termination under the current circumstances (Brief on Behalf of Respondents in Response and in Opposition to the Verified Petition, dated December 9, 2021 ["Resp MOL"] at 7).
The facts as set forth in the arbitrator's Opinion & Award, PERB Case A2019-396, Jesse J. Burby, Grievant, dated August 23, 2021 (Pet, Ex A ["O&A"]), which I am bound to accept, are as follows:
On January 6, 2020, Burby was an employee of the Albany County Department of Public Works, and was engaged in remodeling construction at the New Scotland Subdivision (O&A at 4). A co-worker, Brett Bukowski, entered the work site (id. ). At approximately 1 p.m., Burby placed a "Bostich pneumatic nail gun on Bukowski's arm, and pulled the trigger" (id. ). As a result, a nail shot out and punctured Bukowski's right arm (id. ). Burby then placed the gun on his co-worker's kneecap in an attempt to shoot him a second time, but Bukowski pushed him away before he took the shot (id. ).
The O&A notes that "there was apparently some kidding around about the pace of progress on the project when Bukowski arrived, but the arbitrator said nothing more about this, and did not tie it in any way to what followed (see O&A at 4).
Burby claimed "that he didn't know the nail gun was loaded, or in the alternative, that it was not operating properly" (id. at 5). He was criminally charged, and eventually pled guilty to a violation of NYS Penal Law Section 120.00(1) , Reckless Assault 3rd Degree and sentenced to three years of probation (id. ). The arbitrator found that Burby "caused injury to a fellow employee by his reckless actions, and there were real health consequences that Bukowski suffered as a result" (id. ). On the day Burby shot him in the arm, Bukowski was taken to Albany Medical Center Hospital to have the nail removed (id. at 4). The injury kept him from returning to work "for at least six months" (id. ).
Under this criminal statute, "[a] person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument." (Penal Law 1200.00[1]). It is a Class A Misdemeanor.
Upon assessing the evidence before him, the arbitrator sustained "Charge One" of the Notice of Discipline and Notice of Charges ("NOD") (id. at 5). This charge is set forth in the O&A as follows:
"CHARGE ONE: MISCONDUCT. RECKLESS ASSAULT OF A FELLOW EMPLOYEE
On January 6, 2019, while working at the New Scotland Subdivision, you shot an employee in his arm with a pneumatic nail gun. On that day, at approximately 1:00 PM, while working in your position at the Department of Public Works, you were using a pneumatic nail gun to fasten an enclosure in the bathroom of he building. While doing this work, another employee came into the room. In the course of an interaction with this employee, you placed the nail gun against the employee's arm above the elbow of the right arm. You then caused that nail gun to discharge a nail into the employee's arm. After discharging the nail in the employee's arm, you then proceeded to try another shot at his knee.
Your actions in causing the nail gun to discharge a nail into the arm of a fellow employee were reckless. Your actions caused physical injury and substantial pain to the employee and required the employee to undergo a surgical procedure regarding the injury to his arm caused by the nail. Your actions also were in violation of the Albany County Workplace Violence Policy.
Your actions in recklessly causing a pneumatic nail gun to discharge a nail into the arm of another employee cannot be tolerated on the job and displayed an utter disregard for the safety of your fellow employee" (O&A at 3).
"Charge Two" — the only other charge in the NOD — was for "Misconduct: Violation of the Workplace Violence Policy" (O&A at 3). The arbitrator determined that, since no such policy was ever entered into evidence, he could not sustain this charge, despite finding that "it is probable that there was a violation of such policy" (id. at 5).
Based on the sustained charge, the County urged the arbitrator to uphold its termination penalty, because "the actions taken by Burby were so outrageous that it is the only alternative" (id. at 5). Upon examining Burby's work history and crediting what he described as "remorse" displayed by Burby during the proceeding, the arbitrator concluded that "a measure of redemption [could] be found in this matter." He made no finding as to whether or not Burby had engaged in any other acts of violence in the past, nor did he address whether there was any likelihood he would do so again (id. ). Although the arbitrator determined the penalty should be "so severe that it sends a message", he modified the termination to a two-year suspension without pay (id. ). Under this penalty, Burby would also be subject to a one-year probationary period upon his return, during which he could be summarily terminated without recourse under the parties’ collective bargaining agreement if he "commits any acts that are the same or similar" to those set forth in the sustained charge (id. at 6).
Discussion
This Court's role in reviewing an arbitration award is very limited, and it cannot "examine the merits of [the] award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one" ( Matter of New York State Correctional Officers & Police Benevolent Assn. v. State of New York , 94 N.Y.2d 321, 326, 704 N.Y.S.2d 910, 726 N.E.2d 462 [1999] ). A court may vacate such an award only when it determines "that it violates public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" ( New York city Transit Authority v. Transport Workers Union of America, Local 100, et al. , 14 N.Y.3d 119, 123, 897 N.Y.S.2d 689, 924 N.E.2d 797 [2010] ). Here, the sole issue presented is whether the arbitrator's award violated "well-established public policies against violence in the workplace" (Memorandum of Law in Support of Petition ["Pet Mem"] 1).
The limited public policy exception allowing for the vacatur of an arbitration award applies "when strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibit a particular matter from being decided or certain relief from being granted by an arbitrator" ( Matter of Livermore—Johnson [New York State Dept. of Corr. & Community Supervision] , 155 A.D.3d 1391, 1392, 65 N.Y.S.3d 308 [3d Dept. 2017] [hereinafter " Livermore-Johnson ], citing Matter of Bukowski [State of NY Dept. of Corr. & Community Supervision] 148 A.D.3d 1386, 1388, 50 N.Y.S.3d 588 [3d Dept. 2017] [hereinafter " Bukowski "]). In deciding whether a particular award runs afoul of public policy, I must "examine the award on its face without extended factfinding, and conclude that public policy precludes its enforcement" ( Bukowski , 148 A.D.3d at 1388, 50 N.Y.S.3d 588 ).
The primary basis for the County's assertion of a public policy against workplace violence requiring termination in this instance is Labor Law § 27-b, also known as the Workplace Violence Protection Act ("WVPA"). That law "provides a general mechanism for, inter alia, evaluating the risk of workplace violence and creating employer plans to address it" ( Matter of City of New York v. Commissioner of Labor , 100 A.D.3d 519, 520, 954 N.Y.S.2d 72 [1st Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 518565 [2013] ).
Respondent CSEA notes that petitioner failed to introduce its own workplace violence policy at the hearing — and indeed speculates that the absence of a submission may be an indication that it has not complied with its obligations under section 27-b (see Pet Mem 8). Since the County relies on the statute, the absence of the County policy in the record does not preclude a finding in its favor on this question. I note that while an employer must develop and maintain a workplace violence program under the governing regulations, the required elements of the plan involve such matters as risk factors, controls and specific hazards, and it is not clear such program would be relevant to the question of whether the arbitration award violates public policy (see 12 NYCRR 800.6 [g][2]).
At the time the WVPA was enacted in 2006, the Legislature made the following findings explaining the need for the statute:
"The legislature finds and declares that workplace assaults and homicides are a serious public health problem that demands the attention of the state of New York. During the last decade, homicide was the third leading cause of death for all workers and the leading cause of occupational death for women workers. Workplace violence presents a serious
occupational safety hazard for workers, but many employers and workers may be unaware of the risk. Moreover, the hazard of workplace violence is not currently addressed by any specific federal or state statute and regulation. It is critical to the maintenance of a productive workforce that employers and workers evaluate their workplaces to determine the risk of violence and to develop, and implement programs to minimize the hazard. Experience has shown that when employers evaluate the safety and health hazards in their workplaces and implement employee protection programs, the incidence of workplace injuries is reduced. The legislature, therefore, further finds and declares that the public health, safety and welfare would be advanced by enactment of a law to require that employers develop and implement workplace violence protection programs designed to minimize the danger to employees of workplace violence. That Act with the primary purpose of preventing and minimizing the hazard of workplace violence to public employees and making clear the duty of public employers to ‘design and implement workplace violence protection programs’ " ( Labor Law § 27-b[1] [effective March 4, 2007]).
The last sentence is taken from the Act's statement of purpose, which reads in its entirety: "The purpose of this section is to ensure that the risk of workplace assaults and homicides is evaluated by affected public employers and their employees and that such employers design and implement workplace violence protection programs to prevent and minimize the hazard of workplace violence to public employees."
The regulations implemented pursuant to this statute further provide that public employers are to develop procedures to identify and eliminate "any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious harm" ( 12 NYCRR 800.6 [d][5]). The regulations create a specific category for "serious violations," which includes the employer's failure to "address situations which could result in serious physical harm" ( 12 NYCRR 800.6 [d][11]). "Serious physical harm" encompasses any injury which "creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ or a sexual offense" ( 12 NYCRR 800.6 [d][7]).
While he provisions of the WVPA added greater specificity, an employer's obligation to take steps to prevent workplace violence had already been provided for in the so-called "general duty" provisions of the Public Employee Safety and Health Act (the "PESHA"), set forth in Labor Law § 27-a. The language of that provision states in relevant part; "[e]very employer shall ... furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees" ( Labor Law § 27—a [3][a][1] ). The PESHA itself provides a further and independent legal ground requiring a public employer to take actions to prevent workplace violence when there exists a hazard likely to cause death or serious physical harm to employees (see generally City of New York , 100 A.D.3d at 520, 954 N.Y.S.2d 72 ). Thus, in City of New York , the First Department upheld a finding of PESHA violations when employees at a juvenile detention center "were exposed to serious physical injuries while caring for resident[s], who [had] been known to be violent," and directing the employer — among other things — to create a program that "the employer will use to prevent incidents of occupational assaults and homicides." (see City of New York v. Commissioner of Labor , 31 Misc.3d 398, 400, 917 N.Y.S.2d 834 [Sup. Ct., NY County 2011], aff'd 100 A.D.3d 519, 954 N.Y.S.2d 72 [1st Dept. 2012] ; (see also Matter of Dockery v. New York City Hous. Auth. , 51 A.D.3d 575, 859 N.Y.S.2d 130 [1st Dept. 2008] [upholding sanction of termination where "petitioner violated the Housing Authority's policy against violence in the workplace").
A number of conclusions may be drawn from the above provisions as relevant to the matter at hand. First, there is no general requirement in any statute or implementing regulation that explicitly or implicitly requires that all incidents of violence in workplace must lead to termination. There is, however, a legal obligation on the employer to take steps to prevent workplace violence, and in particular (as part of the General Duty Clause in the PESHA and the WVPA itself), to ensure that employees are not subjected to recognized hazards which may cause them serious physical harm or death from workplace violence. To frame these principles in the arbitration context, an arbitrator's reinstatement of an employee who has committed some act that constitutes "workplace violence" does not violate any clear act of public policy. However, when the reinstatement of an employee places his or her co-workers at significant risk of serious injury from future violence, that act clearly contradicts the purposes and terms of the PESHA and WVPA, and therefore is contrary to public policy
In addition to looking to these statutes, the existence of a public policy may receive support from the fact that the relevant actions of the employee violated criminal law (see Williams v. New York State Department of Corr. & Community Supervision , 68 Misc.3d 884, 895, 126 N.Y.S.3d 330 [Sup. Ct., Alb. County 2020] [looking to Penal Law provisions violated by employee in establishing public policy against his reinstatement]). As noted above, Burby pled guilty to assault in the third degree, a Class A misdemeanor subject to penalties of up to a year in prison (see NY Penal Law § 120.00 ; cf. United University Professions v. State , 38 Misc.3d 1212[A], 2013 WL 203402 [Sup. Ct., Albany Cty Jan. 7, 2013] [the "cited provisions of the penal law support respondent's view that, generally, public policy supports certain punishment for conduct that is adjudged to be criminal larceny as defined in the statute," although Court rejects the argument for such a policy in case before Court since employee "was neither charged criminally nor adjudged to be guilty of any crime]"). While the Penal Law is not much of an aid in determining the specific contours of any public policy against workplace violence, it does demonstrate the severity of the societal and legal opprobrium concerning the conduct at issue.
The conclusion that there is no generalized policy requiring termination for "workplace violence," but there is a public policy precluding reinstatement where such will place other employees at significant risk of serious injury is consistent with New York caselaw, although there is only very limited authority touching on acts of violence between employees in the arbitration context — and none I can find where the violence was of the gravity at issue in this case.
A number of decisions involving low level acts of violence committed in the workplace by public employees, although not directly on point, make clear the former point: that there is no public policy requiring that employees who engage in any conduct which falls within the legal definition of workplace violence must be fired (see New York City Tr. Auth. v. Transport Workers Union of Am., Local 100 , 14 N.Y.3d 119, 122, 897 N.Y.S.2d 689, 924 N.E.2d 797 [2010] [hereinafter " TWUA "] [declining to overturn arbitration award imposing a sanction of less than termination on an employee who "laid hands on" a member of the public "not without some provocation"]; Matter of Mancini v. New York City Hous. Auth. , 126 A.D.3d 426, 427, 2 N.Y.S.3d 345 [1st Dept. 2015] [upholding 30-day suspension for employee who engaged in "incident of workplace violence," involving threat to supervisor]; see also Matter of State of NY, Off. of Children & Family Servs. [Civil Serv. Empls. Assn., Inc.] , 79 A.D.3d 1438, 913 N.Y.S.2d 796 [3d Dept. 2010], lv denied 17 N.Y.3d 706, 2011 WL 2567292 [2011] [hereinafter " Matter of OCFS "] [reinstatement of employee of youth facility who "punched a juvenile resident and pushed a coworker" did not violate public policy of "protecting the safety and welfare of children placed in [juvenile] facilities," when arbitrator found that incident was isolated and not premeditated]).
Workplace violence is expressly defined in the regulations issued under the WVPA to encompass "(i) an attempt or threat, whether verbal or physical, to inflict physical injury ... (ii) any intentional display of force which would give an employee reason to fear or expect bodily harm; (iii) intentional and wrongful physical contact with a person without his or her consent that entails some injury; and (iv) stalking an employee with the intent of causing fear of material harm to the physical safety and health of such employee when such stalking has arisen through and in the course of employment" (see 12 NYCRR 800.6 [d][11]).
Indeed, just last month the First Department made the general statement that "[t]here are no public policy considerations which would prohibit an arbitrator from deciding if an employee should be disciplined for workplace violence or imposing a 25-day suspension for such violence" ( Cherrington v. New York City Transit Authority , 203 A.D.3d 539, 165 N.Y.S.3d 492 [3d Dept. 2022] ). Although Cherrington concerned a challenge brought by an employee seeking a reduction in the sanction, the Appellate Division cited as support for this proposition to TWUA , supra , a case rejecting a petition brought by the employer on the ground that the sanction was too lenient. Thus I take from the holding that there is no overall policy precluding suspension as an consequence for any act of violence by an employee.
But the Third Department has also held, in a case involving an act of violence against an incarcerated person by a correction officer, that in determining whether the award is against public policy, the Court must look to the "particular nature" of the "offense," rather than simply adopting a blanket policy regarding all acts of violence by State employees (see Bukowski , 148 A.D.3d at 1390, 50 N.Y.S.3d 588 ). In Bukowski , the Court determined that the employee's actions in covering up and lying about the offense raised it to a level requiring termination ( id. at 1391, 50 N.Y.S.3d 588 [employee's "dishonesty and failure to accept responsibility ... differentiate this case from prior determinations in which courts have declined to disturb penalties"]). It made clear that these findings distinguished the case from those in which "the offenses were unlikely to be repeated " ( id. [emphasis added]). Other factors, too — including the gravity or intentionality of the violent act — may similarly support an inference that it is likely to be repeated, and thus support a finding that reinstatement would contravene New York public policy. Put simply, workplace violence can include anything from a slap to homicide (see supra n 6). It is clear that the former alone does not compel termination, while reinstatement of an employee in the latter case would obviously be a different matter altogether. The key for public policy purposes, as made clear by the PESHA and WVPA, is whether and to what extent reinstatement places employees in danger of serious injury.
A number of federal court decisions applying a similarly defined public policy exception under federal law also support the principle that the key policy in regard to workplace violence turns on whether reinstatement creates the danger of its repetition, and thus places the individual's co-workers at risk. After surveying federal caselaw in this regard, G.B. Goldman Paper Co. v. United Paperworkers Int'l Union, Local 286 , 957 F.Supp. 607 (E.D. Pa. 1997) found that there was a public policy under federal law of "workplace safety," which turned on the "chance of harm that the grievant would pose to other people in the workplace" if allowed to return ( id. at 620 ). Specifically, the court held that "reinstating [a] violent employee who is likely to harm other employees, co-workers, customers or people would violate a well defined and dominant public policy concerning workplace safety" ( id. at 620 [quotation marks omitted]).
In reaching this conclusion, the district court discussed a number of federal Court of Appeals decisions which upheld arbitration awards involving incidents of violence because the arbitrator had made specific findings that the worker had no propensity towards violence, or was unlikely to engage in similar conduct in the future (see G.B. Goldman Paper Co. , 957 F.Supp. at 619-620 ).
This principle has been adopted by New York federal courts as well, in cases involving threats of violence. Thus, in LIN Television Corp. v. Nat'l Assoc. of Broadcast Emps. & Technicians , 219 F.Supp. 3d 372 (W.D.N.Y. 2016), the Court applied the G.B. Goldman Paper Co. standard in declining to overturn an arbitrator's decision to impose a lesser sanction than termination, as the arbitrator had found that the evidence did not indicate the employee had "a propensity or risk for violence towards others" ( id. at 378 ; see also NY State Elec. & Gas Corp. v. Sys. Council U-7 of Int'l Bhd. of Elec. Workers, 328 F.Supp.2d 313, 317 [N.D.N.Y. 2004] ["unlike other [arbitrations] that fall within the public-policy exception [for preventing workplace violence], [the arbitrator] did not find that [the employee's] behavior was violent or dangerous or that he posed a threat to his co-workers"]).
At least state court decision in another state, in declining to overturn an arbitrator's award based on a public policy against workplace violence, indicated that the proper focus was on the risk of potential future harm from reinstatement. In City of Palo Alto v. Serv. Emps. Int'l Union , 77 Cal. App. 4th 327, 91 Cal.Rptr.2d 500 (Cal. Ct. App. 1999) ), the Court found — in part on the basis of generalized statutory provisions requiring workplace safety similar to those set forth in New York law — that there was an "explicit public policy requiring employers to take reasonable steps to provide a safe and secure workplace," including "the duty to adequately address potential workplace violence" (id. at 336-337, 91 Cal.Rptr.2d 500 ). The Court found that this policy did not require the firing of any employee who made threats of violence, "regardless of the employee's intent in uttering it and the actual risk to workplace safety" (id. at 337, 91 Cal.Rptr.2d 500 ) It left open, however, the question of "whether and under what circumstances a court could conclude, contrary to an arbitrator's finding, that reinstatement would pose a significant risk of violence and contravene the public policy requiring an employer to provide a safe workplace" (id. at 338 n. 8, 91 Cal.Rptr.2d 500 ).
In sum, while the public policy against "workplace violence" proffered by petitioner is too broad and vague to provide a basis for overturning the arbitration award, I find that there is a clear public policy in New York State against returning to the workforce an individual who poses a significant threat of serious injury to his co-workers. I turn then to the O&A to consider whether it violated this policy. In so doing, I must look at the Award on its face, without engaging in extended factfinding, or legal analysis (see Matter of New York Off. for People with Dev. Disabilities [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL—CIO] , 193 A.D.3d 1305, 147 N.Y.S.3d 735 [3d Dept. 2021] [hereinafter " Matter of OPWDD "]. This standard does not, however, preclude me from looking at the particular facts of the case as found by the Arbitrator, to the extent they bear on whether the employee's reinstatement would violate the cited public policy (see e.g. Livermore-Johnson , 155 A.D.3d at 1395, 65 N.Y.S.3d 308 [overturning non-termination arbitration award for disclosure of non-confidential information; noting employee's supervisory position and responsibility for safety of incarcerated persons and staff as factors in reaching this determination]; Bukowski , supra ).
Here, the arbitrator sustained "Charge One," in which Burby was found to have shot his co-worker with a pneumatic nail gun in his right arm, without provocation (O&A at 3). Such action was determined to be "reckless ... caus[ing] physical injury and substantial pain to the employee and required the employee to undergo a surgical procedure" (id. ). Despite the reference to "recklessness," the arbitrator also stated that Burby "proceeded to try another shot at his knee" — which would appear to describe an intentional act — and "if Bukowski had not pushed him away, might have shot him for a second time" (id. at 3-4). Ultimately, the arbitrator never really decided the central question of whether these acts were intentional, nor did he shed any insight into how Burby came to fire a nail into his co-worker's arm, and then move to the victim's leg for a second shot. Rather, he stated: "Accidental or not , [Burby] caused injury to a follow employee by his reckless actions ..." (id. at 5 [emphasis added]).
The O&A further found that Burby's actions "cannot be tolerated on the job and displayed an utter disregard for the safety of [his] fellow employee" (id. ). Given the extraordinary gravity of Burby's act, entailing his use of a potentially deadly weapon against another individual at the work place followed by an effort to do so a second time, these findings raised a sufficient inference that this employee could pose a significant danger of serious injury to his fellow workers if reinstated, so as to require that the arbitrator at least address this question.
It goes without saying that a tool which can drive a nail into a wall can cause severe injury if used against a human being. In the event that is unclear, I take judicial notice that the guidance on such tools issued by the Occupational Safety and Health Administration states that "Severe nail gun injuries have led to construction worker deaths" (see https://www.osha.gov/sites/default/files/publications/NailgunFinal_508_02_optimized.pdf at 1).
Yet there is no finding in the Award regarding whether or not Burby's return would pose a threat to his or her fellow employees. Although the arbitrator referenced (without describing) Burby's prior history and "obvious remorse," the conclusion he drew therefrom that "there can be a measure of redemption to be found in this matter" — whatever that means — says nothing about his propensity for violence, the threat of future harm from his return or the danger it imposed on his co-workers. Rather, the A&O is devoid of such findings. Indeed, as noted, the arbitrator did not even reach a conclusion as to whether the employee he was reinstating shot someone with a potentially deadly metal object (and tried to do it again) on purpose. Recent cases finding that the reinstatement of employees who have engaged in sexual harassment of their co-workers violates public policy has specifically cited the arbitrator's failure to consider the threat to other employees of returning the terminated employee to his former place of work in overturning the award. Thus, the Third Department found that one such award "fail[ed] to account for the rights of other employees to a non-hostile work environment and conflicts with the employer's obligation to eliminate sexual harassment in the workplace" ( Matter of OPWDD, supra [affirming vacatur and remittal of award that reinstated employee who engaged in workplace sexual harassment and violence as being in conflict with public policy prohibiting sexual harassment in the workplace]; see also New York City Transit Auth. v. Phillips , 162 A.D.3d 93, 100-102, 75 N.Y.S.3d 133 [1st Dept. 2018] [ public policy prohibits behavior which "has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive working environment"; reversing lower court decision that upheld arbitration award that found that such conduct did not amount to sexual harassment in the workplace]).
If Burby's account that the shots were accidental were credited, that would have profoundly different implications for the risk of his return than if they had been intentional. Moreover, if the latter is the case, than Burby has never acknowledged his actions, and indeed gave a false account of them. The Court is bound by the arbitrator's findings in this regard. But there have been no such findings in this case.
That is precisely the issue here. The public policy set forth in the PESHA and WVPA protects employees against actions that will subject them to the risk of serious harm, and Burby's conduct in this case was of sufficient severity that his return implicates that policy. Yet the arbitrator reinstated him without any evaluation as to the danger this would pose to his co-workers, instead considering only whether Burby might find "redemption" (compare Matter of OCFS , 79 A.D.3d at 1441, 913 N.Y.S.2d 796 [award upheld when arbitrator specifically addressed "safety concerns of returning [employee] to his position," noting sanctioned employee gave testimony on acceptance of responsibility and understanding that actions were wrong, voluntarily attended anger management therapy and agreed to be subject to probation on return to work]).
As a result, the arbitration award is in violation of the clearly enunciated public policy of protecting public employees against serious harm from violence in the workplace. The petition is therefore granted to the extent that the award is vacated and remanded to the arbitrator for further proceedings and findings consistent with this Decision & Order (see CPLR 7511[d] ).
This constitutes the Decision & Order of the Court.