IN RE SOC. SER. EMP. UNI., LOCAL 371 v. N.Y.

Full title: IN THE MATTER OF THE ARBITRATION OF CERTAIN CONTROVERSIES BETWEEN SOCIAL…

Court: Supreme Court of the State of New York, New York County

Date published: Jan 2, 2007

2007 N.Y. Slip Op. 34471 (N.Y. Sup. Ct. 2007)

Opinion

106356/06.

January 2, 2007.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] SCHLESINGER, J.

Petitioner Social Services Employees Union, Local 371, commenced this Article 78 proceeding on behalf of its member Filipe Rivera to annul the February 7, 2006 Opinion and Award of Arbitrator Randi E. Lowitt, Esq. In the Opinion, rendered after a hearing, the Arbitrator upheld Mr. Rivera's discharge from his employment as a Community Assistant for the Human Resources Administration. Petitioner seeks a judgment vacating the Award, pursuant to CPLR § 7511 (b)(1)(iii), on the ground that the Arbitrator "exceeded [her] power." Primarily, petitioner asserts that the Arbitrator exceeded her power when she admitted into evidence a June 5, 2000 memorandum relating to Rivera in contravention of the Collective Bargaining Agreement.¹ Respondent has cross-moved to dismiss the petition for failure to state a cause of action and to confirm the Award.

1 Notwithstanding respondent's claim to the contrary, the Collective Bargaining Agreement expressly applies to Local 371 and the job title of Community Assistant.

Background Facts

The following facts, recited in the Arbitration Award, are undisputed. Filipe Rivera was employed by the New York City Human Resources Administration as a Community Assistant at New Day for eight years, from 1997 until his discharge on April 30, 2005. New Day is a 179 bed facility for victims of domestic violence. As a Community Assistant, Mr. Rivera's duties involved matters such as the maintenance of the facility and providing the residents with food supplies and linens.

Significantly, Mr. Rivera's record contains no complaints about the adequacy of his work. On the contrary, the Director of New Day testified at the hearing that Mr. Rivera was "very hard working." Nor has Mr. Rivera been accused at any point during his eight-year career of having acted unprofessionally toward any of the residents. The only arguably negative notation in his record is a memorandum dated June 5, 2000. That memorandum, which is at the heart of the dispute in this case, will be discussed more fully below.

At the hearing, the employer presented two witnesses to the event which had led to Mr. Rivera's discharge; namely, Ms. Hadiza Smith and Mr. Stanley Rhamdeow, both Community Assistants. They explained that a bathroom measuring approximately 8' x 6' is attached to the staff lounge. At the time in question, Kevin Pope, a Motor Vehicle Operator at the facility, was in the bathroom. Mr. Rivera entered the lounge and spoke with Ms. Smith about the foul odor emanating from the bathroom. Mr. Rivera then poured some ammonia on the floor near the bathroom door and turned on a fan. Shortly thereafter, Mr. Pope emerged from the bathroom with his eyes tearing and feeling ill. At or about that time, other employees of the facility entered the lounge, smelled the ammonia, and observed Mr. Pope's condition. Mr. Pope went to the hospital later that evening to be examined.

Neither of the two employees in the lounge prevented Mr. Rivera from pouring the ammonia or told him to clean it up and turn off the fan. On the contrary, Mr. Rivera testified that when he entered the lounge, Ms. Smith had body spray in her hand which she was spraying in an attempt to cover the bathroom odor. Significantly, Ms. Smith gave the same testimony. Rivera testified that Ms. Smith asked him for help in killing the odor because the spray she was using was of no help. In response to the request, Rivera testified, he "sprinkled three little drops" of ammonia and then turned on the fan to blow the air.

The precise amount of ammonia used and Mr. Rivera's intentions are disputed. Mr. Rivera insists that he was making a good faith effort to dissipate the smell, consistent with his maintenance duties and Ms. Smith's request, and that he was unaware that ammonia could sicken someone. New Day's Director Ms. Barthelemy claimed that Rivera should have known the effect of ammonia because, in 1999, he had had hazardous substance training and because he had previously used ammonia. Rivera asserted that specific information about ammonia had not been included in the training and that he had seen Pope himself using ammonia without getting sick. Ms. Hough, a Supervisor I Welfare, did not observe the incident but spoke to Mr. Rivera about it afterwards. She apparently testified that Mr. Rivera had told her that he had just been joking with Pope.² Mr. Rivera denied having made such a statement and indicated that, instead, it had been Ms. Hough who had said that Rivera and Pope were always joking with one another. Also, when asked why he did not wait for Pope to exit the bathroom before using the ammonia, Rivera said he had acted "quickly."

2 As the Arbitrator herself indicated in her Award, no stenographer was present and no actual record was taken of the proceedings. Therefore, the Arbitrator paraphrased testimony based on her recollection and her notes.

The document at issue is a Memorandum dated June 5, 2000 from M. Barthelemy, Director of New Day, to Vivian Martin, ASW. The subject of the Memorandum is "Allegations against Community Assistant Felipe Rivera." In the Memorandum, Ms. Barthelemy appears to respond to Ms. Martin's concern that New Day failed to seriously address her complaint about Mr. Rivera. Although Rivera's alleged behavior is not described in the Memorandum, Barthelemy refers to it as "inexcusable," and she assures Ms. Martin that the matter was discussed with Mr. Rivera and that a follow-up conference would be held. As relevant here, Ms. Barthelemy states in the memo as follows: "Mr. Rivera stated he was only playing/joking with you and occasionally you both played/joked around. Although Mr. Rivera stated he was playing/joking, we still reprimanded him for his behavior."

The June 5, 2000 Memorandum was admitted into evidence through Barthelemy overthe objection of Mr. Rivera's attorney. After the hearing, Rivera reiterated his objection in writing, in a letter to the Arbitrator dated December 21, 2005. Citing to a provision in the Collective Bargaining Agreement (quoted below), Rivera emphasized that the Memorandum was inadmissible, explaining that: "Since Mr. Rivera was not given a copy of this memorandum, he was deprived of the opportunity to answer same, and the prohibition set forth in Article X, Section 1 of the Citywide Agreement against its use in any subsequent disciplinary action against him clearly applies in this case." The objection was repeated in counsel's January 27, 2006 Closing Statement. Thus, respondent's suggestion (at p. 7 of its memo) that the argument was not "properly preserved by petitioner" is wholly without merit.

After the hearing, the Arbitrator rendered the following opinion:

After a careful consideration of all the evidence presented at the hearings, as well as the documents presented, I find that Mr. Rivera did engage in the activity for which he was disciplined. I also find that the disciplinary action taken [i.e., discharge] was the appropriate remedy. . . .

Mr. Rivera demonstrated extremely poor judgment. Even if Ms. Smith did ask him how to eliminate the foul odor, and even if he did not intend to cause any harm, his comment about having acted quickly, albeit with knowledge that someone was in the bathroom, shows that Mr. Rivera either lacks the judgment to know appropriate from inappropriate or he lacks the necessary ability to act cautiously, as is evidenced from his comment about ammonia never bothering him, personally. . . . Some one was in the bathroom, in a small, enclosed area. Mr. Rivera, a person who allegedly uses ammonia regularly and a person who allegedly knows the directions for use of ammonia, placed ammonia too close to that unventilated area. His actions were irresponsible and inexcusable. His testimony was not credible.

Discussion

As respondent correctly notes, a court may not vacate an arbitration award except in the limited circumstances specified in CPLR § 7511(b)(1). Specifically, a court may vacate an arbitration award only if the award "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power." In re Local 333 v New York City Department of Transportation, 2006 WL 3591933 (1^st Dep't 2006), quoting Matter of Board of Educ. Of Arlington Cent. School Dist. V Arlington Teachers Assn., 78 NY2d 33, 37 (1991). An arbitrator may be said to have exceeded her power if she "gave a completely irrational construction to the [contract] provisions in dispute and, in effect, made a new contract for the parties." In the Matter of National Cash Register Company, 8 NY2d 377, 383 (1960), citing Matter of S W Fine Foods, 7 NY2d 1018; Matter of Wilkins, 169 NY 494, 496-97; see also, Matter of Riverbay Corp., 91 AD2d 50 (1st Dep't 1982).

In the case at bar, this Court finds that the Arbitrator exceeded her power in that she gave a completely irrational construction to the parties' Collective Bargaining Agreement (CBA) and, in effect, made a new contract for the parties when she admitted the June 5, 2000 Memorandum into evidence. Specifically, the Arbitrator acted in violation of the express language of Article X, Section 1, of the CBA, which limits the admission of certain evidence in disciplinary proceedings as follows:

An employee shall be required to accept a copy of any evaluatory statement of the employee's work performance or conduct prepared during the term of this Agreement if such statement is to be placed in the employee's permanent personnel folder whether at the central office of the agency or in another work location. Prior to being given a copy of such evaluatory statement, the employee must sign a form which shall indicate only that the employee was given a copy of the evaluatory statement but that the employee does not necessarily agree with its contents. The employee shall have the right to answer any such evaluatory statement filed and the answer shall be attached to the file copy. Any evaluatory statement with respect to the employee's work performance or conduct, a copy of which is not given to the employee, may not be used In any subsequent disciplinary actions against the employee . At the time disciplinary action is commenced, the Employer shall review the Employee's personnel folder and remove any of the herein described material which has not been seen by the employee. (Emphasis supplied.)

The parties negotiated this provision and agreed upon its inclusion in the CBA with a clear and rational purpose in mind. The Union obviously wished to protects its members from practices such as that employed in this case where a negative statement about the employee's conduct is offered six years after the fact, when the employee's memory of the events is presumably too dim to serve him well. In addition to the prejudice caused by the passage of time, the employee is prejudiced by the introduction of the statement into evidence without advance notice, depriving him of any opportunity to prepare a response and call witnesses on his behalf.

By admitting the June 5, 2000 Memorandum into evidence, the Arbitrator gave the above-cited provision of the CBA a completely irrational construction and in effect made a new contract for the parties. Although the Memorandum may not be an "evaluatory statement" per se, it is the equivalent of one in that it comments upon the employee's alleged conduct in an extremely negative fashion. By admitting the Memorandum into evidence, the Arbitrator rewrote the carefully drafted provision in the CBA prohibiting the use of such documents against the employee and exceeded her power. See, Matter of Riverbay, 91 AD2d 509, 510 (1^st Dep't 1982) (vacating an award where arbitrator exceeded his power by requiring employer to give employee a clear and unequivocal warning of its revised standards prior to discharge when the collective bargaining agreement contained no such language); Matter of Local 333, 2006 WL 3591933 (1^st Dep't) (confirming an arbitration award based on a violation of the zero tolerance policy, finding that the collective bargaining agreement was "silent" as to the policy).

Although a court generally must defer to the arbitrator on decisions relating to the admission of evidence, such deference is Inappropriate where, as here, the arbitrator admitted the evidence in "breach of authority" and thereby exceeded her power. See Matter of Travelers Insurance, 239 AD2d 289, 292 (1^st Dep't 1997). Similarly, while an arbitrator in a disciplinary case generally has the power to consider evidence of the employee's prior conduct, she may not do so where the CBA expressly circumscribes that right, as it does in this case.

The vacatur of the award in this case is also appropriate because the evidence admitted was highly prejudicial. As noted by the court in Dahn v Luchs, 92 AD2d 537, 538 (2^nd Dep't 1983), "in an arbitration proceeding, the admission of evidence that is merely incompetent or irrelevant is not sufficient cause for vitiating an award; [but] such a result is mandated . . . where the objected-to evidence is extremely prejudicial . . ."(citation omitted). While the Arbitrator in this case did not refer to the Memorandum in her conclusion, she specifically referenced it in her discussion of the evidence. Her rejection of Mr. Rivera's testimony as incredible, and her conclusion that Mr. Rivera either lacked the judgment to know appropriate from inappropriate or lacked the necessary ability to act cautiously, were inevitably shaped in part by the June 5, 2000 Memorandum which cast Mr. Rivera in an extremely negative light as one who joked around inappropriately.

As the Court of Appeals reasoned in Goldfinger v Lisker, 68 NY2d 225 (1986):

Precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded.

Thus, while an arbitrator need not follow all the niceties observed by the courts, she "must grant a fundamentally fair hearing." Matter of Coty Inc., 2003 WL 139551 (Sup Ct., NY Co.), aff'd 7 AD3d 438 (1^st Dep't 2004). By admitting the highly prejudicial June 5, 2000 Memorandum into evidence, despite the clear wording of the CBA, the Arbitrator denied Rivera a fair hearing.

In sum, discharging Mr. Rivera after eight years of service is a draconian penalty which this Court cannot confirm in light of the Arbitrator's decision to admit the June 5, 2000 Memorandum into evidence in direct violation of the Collective Bargaining Agreement and in excess of the Arbitrator's power. Accordingly, it is hereby

ADJUDGED that the petition is granted, the February 7, 2006 Arbitration Award is annulled, and the matter is remanded for a new hearing before a new arbitrator consistent with the terms of the Collective Bargaining Agreement and this decision; and it is further

ADJUDGED that the cross-motion to dismiss the petition is denied.

This constitutes the decision and judgment of this Court.