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Arbitrator to determine if CAB?s disciplinary procedure applies in the event an employee is summarily dismissed due to the lack of certification

Arbitrator to determine if CAB?s disciplinary procedure applies in the event an employee is summarily dismissed due to the lack of certification
Matter of New York State Off. of Alcoholism & Substance Abuse Servs. v Ortiz, 2009 NY Slip Op 03809, Decided on May 14, 2009, Appellate Division, Third Department

NYPPL recently summarize the decision in Matter of New York State Off. of Children & Family Servs. v Lanterman, 2009 NY Slip Op 03808, Third Department, decided on May 14, 2009. [see http://publicpersonnellaw.blogspot.com/2009/05/employee-terminated-after-losing.html].

Lanterman was terminated from her teaching position with the Office of Children and Family Services after losing the license she was required to possess in order to lawfully perform the duties of the position. The Appellate Division, Third Department, ruled that an employee terminated after losing the license required to perform the duties of the position was not entitled to a pre-termination disciplinary hearing because ?whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.?

Rather, said the court, certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under this provision of the CBA.?

Further, the Appellate Division did not viewed Lanterman's failure to obtain certification and the decision to terminate her because she did not possess the qualifications required for her to be eligible for a teaching position as constituting a matter "concerning the interpretation, application or claimed violation" of the CBA. Rather, said the court, ?certification is a legal condition precedent that Lanterman was obligated to satisfy to be eligible to retain her position.?

The Appellate Division rejected the argument that Lanterman?s collective bargaining representative, the Public Employees Federation [PEF], advanced that Lanterman was entitled to arbitrate the applicability of the disciplinary process under the collective bargaining agreement [CBA] to her termination resulting from her failure to maintain her teaching certification.

The Lanterman decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03808.htm

In Ortiz, PEF presented the court with essentially the same question.

Victor Ortiz was employed as a counselor by the New York State Office of Alcoholism and Substance Abuse Services [OASAS]. Counselors with OASAS are required to maintain ?proper credentialing? in order to provide services to persons suffering from alcohol and substance abuse, chemical dependence or compulsive gambling.

Ortiz was terminated from his position as an Addictions Counselor II five days after the expiration of his certification as a Credentialed Alcoholism and Substance Abuse Counselor [CASAC]. In terminating Ortiz, OASAS admittedly did not comply with the contract disciplinary procedure set forth in the CBA.

The question in this appeal, said the Appellate Division, is whether the CBA entitles Ortiz to arbitrate the applicability of the disciplinary procedures under the CBA to his termination for failure to maintain his certification ? a statutory, minimum qualification for his position.

PEF had submitted a contract grievance asserting that Ortiz?s termination was in violation of the CBA. When OASAS, and subsequently the Governor's Office of Employee Relations, took the position that the CBA's grievance process was not applicable to Ortiz's termination because his failure to maintain CASAC status automatically disqualified him, PEF served a notice of intention to arbitrate pursuant to CPLR Section 7503(c).

OASAS commenced a proceeding in Supreme Court seeking to permanently stay arbitration and PEF cross-moved to compel arbitration. Supreme Court granted PEF?s cross motion to compel arbitration. OASAS appealed, only to have the Appellate Division affirm the Supreme Court?s decision.

The Appellate Division said because OASAS does not oppose arbitration on public policy grounds or assert any statutory or constitutional prohibition against such arbitration, the court?s review is limited to ?whether the CBA contemplated arbitration as a means of resolving the instant dispute.? In a three to two decision, Appellate Division ruled that it did.

The Appellate Division said that ?in determining whether the parties agreed to arbitrate this particular dispute and bearing in mind the broad public policy in favor of arbitrating public sector employment disputes we must only ascertain ?whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.??

In Ortiz the Appellate Division concluded that ?inasmuch as the dispute here concerns the interpretation, application or a claimed violation [of an article contained in the CBA] ? specifically, whether it applies to the termination of an employee for failure to maintain required certification ? it unequivocally falls within the broad provisions of [contract grievance article in the CBA].?

The court decided that it was ?the province of an arbitrator to determine whether Article 33 [providing for the filing of a disciplinary grievance] was intended to 'modify, supplement, or replace the more traditional forms of protection afforded public employees . . . in Section 75 ... of the Civil Service Law' so as to encompass within the definition of 'discipline' action taken against an employee due to the loss of required certification ? thus, triggering the procedures of Article 33."*

Judge Kavanagh, with Judge Cardona concurring, dissented, stating that ?While petitioners in this proceeding do not argue that arbitration of the issues is prohibited by public policy concerns, we conclude, for the same reasons as we did in Matter of New York State Off. of Children & Family Serv. (Lanterman) (___ AD3d ___ [decided herewith]), that the parties did not agree, and for that matter could not have agreed, "to arbitrate the particular dispute" of respondent Victor Ortiz's lack of the statutorily required certification,? and would reverse Supreme Court's order and grant a permanent stay of arbitration.

* In contrast to Civil Service Law Section 75 referred to by the Appellate Division, its statutory equivalent, Education Law Section 3020-a, controlled with respect to initiating disciplinary action against Lanterman, who served as a teacher.

The text of the Ortiz decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03809.htm

Full post as published by New York Public Personnel Law on May 19, 2009 (boomark / email).