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Probationary employee's termination grievance cannot be submitted to arbitration unless CBA specifically so provides

Probationary employee's termination grievance cannot be submitted to arbitration unless CBA specifically so provides
In the Matter of the Application of County of Cattaraugus v Thomas Nuss, 2008 NY Slip Op 28446, Decided on November 7, 2008, Supreme Court, Cattaraugus County, Justice Larry M. Himelein

The general rule is that a probationary employee may be terminated at any time before the end of his or her probationary period for any reason but a constitutionally impermissible one.

When Thomas Nuss was terminated during his probationary period, his employee organization, CSEA, filed a grievance on his behalf challenging his dismissal. Cattaraugus rejected the grievance on the grounds that the grievance procedure that was inapplicable to Nuss because he was a probationary employee and as such, was eligible only for an interview under the Civil Service rules. Nuss then requested the interview.

CSEA maintained that Nuss was entitled to a Step 2 grievance hearing under the terms of the collective bargaining agreement between it and the County. When the County failed to respond to CSEA's demand for arbitration, CSEA filed a CPLR 7503 (c) notice of intent to file a demand for arbitration. In response the County filed a petition pursuant to CPLR Article 75, seeking a court order to stay arbitration.

Essentially Nuss argued that that the collecting bargaining agreement between CSEA and the County gave him the right to arbitrate his dismissal, notwithstanding his status as a probationary employee. Nuss pointed to provisions in the collective bargaining agreement such as Section 34.1 (b), which defined the term "grievance", and Section 34.2, which provides the procedure for resolving grievances; arguing that these provisions gave ?even a probationary employee the right to utilize the grievance procedure.?

In Cohoes City School District v. Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals said that a provision in a collecting bargaining agreement whereby a board of education relinquished its right to make determinations with respect to granting probationary teachers tenure to arbitration was void as against public policy. In contrast, a board of education could limit or restrict its right to terminate a probationary appointment during the period of probation or agree to provide supplementary procedural steps with respect to such a termination.

Accordingly, the court said that ?there is no statutory, constitutional, or public safety policy provision that would preclude arbitration? of Nuss? termination during his probationary period. Thus, the issue to be resolved was whether the County and CSEA agreed, by the terms of the controlling collective bargaining agreement, to refer disputes concerning the termination of an employee during his or her probationary period to arbitration.

Justice Heimelin said that he found nothing in the collective bargaining agreement to support Nuss? claimed right to arbitration. Rather, said the court, the clear language of Section 33.1, of the collective bargaining agreement ? limiting the availability of the grievance procedure to employees who have successfully completed their probationary periods -- controls this case and excludes probationary employees from the arbitration process.

Noting that contract language in a collective bargaining agreement may preclude arbitration, in this instance the court found that the contract specifically limits arbitration to those who have completed a probationary period.

N.B. In Nuss? case the County contended that the Civil Service Rules controlled with respect to the termination of an individual during his or her probationary period. Typically such rules (and case law) provide that employees in the competitive class and the non-competitive class serving probationary periods have due process rights only if they have not yet completed the minimum period of probation set for their appointment. In contrast, a probationary employee who has completed the minimum period of his or her probationary period may be terminated at any time prior to the end of his or her maximum period of probation without notice and hearing [see Gray v Bronx Developmental Center, 65 NY2d 904]. In order to dismiss a probationary employee before he or she has completed his or her minimum period of probation, the employer must serve the individual with disciplinary charges; find the individual guilty of such charges and imposes the penalty of dismissal as appropriate under the circumstances.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_28446.htm

Full post as published by New York Public Personnel Law on November 19, 2008 (boomark / email).