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Court enforces the employer?s rule requiring disciplinary proceedings to be conducted by a hearing officer in accordance with the provision of the CBA

Court enforces the employer?s rule requiring disciplinary proceedings to be conducted by a hearing officer in accordance with the provision of the CBA
Johnson City Professional Fire Fighters Local 921 v Village of Johnson City, 2010 NY Slip Op 50785(U), Decided on April 23, 2010, Judge Ferris D. Lebous, [Not selected for publication in the Official Reports]

In this Article 78 action, Local 921 sought to obtain a court order:

1. Barring the Village of Johnson City from conducting a disciplinary hearing against one of the individuals in the collective bargaining unit, Robert Dempsey;

2. Requiring the Village to select a hearing officer for the contested disciplinary hearing pursuant to the terms of the parties' collective bargaining agreement, which the Local contended required the hearing officer to be selected ?pursuant to the Public Employment Relations Board rules of procedure;? and

3. Staying the disciplinary hearing against petitioner Dempsey, as well as all proceedings against petitioner Dempsey; and

4. Prohibiting the Village from extending petitioner Dempsey's period of suspension beyond February 6, 2010.

Judge Lebous ruled that the Village's Rules and Regulations (§16.1) mandated that disciplinary hearings would be conducted by an impartial hearing officer as agreed upon in the parties' contract Collective Bargaining Agreement.*

In response to the Village?s argument that the CBA did not apply in Dempsey?s situation because ?he was acting in a management capacity at the time of his alleged misconduct,? Judge Lebous ruled that while Dempsey had been fulfilling the role of Chief, he never resigned or was removed as the Fire Marshal or a member of the Union during the pertinent times nor did the Board resolution revoke his authority as Fire Marshal.?

Judge Lebous also noted that the relevant Notice of Discipline was addressed to Dempsey ?in his capacity as Fire Marshal,? a position in the negotiating unit.

Accordingly, he ruled that Dempsey was no longer Acting Chief at time the disciplinary charges were served upon him and, in any event, ?the standing issue is for the arbitrators to decide.?

As to the Village?s claim that it should be permitted to extend Dempsey?s period of suspension without pay because he [or Local 921] was responsible for any delay in going forward with the disciplinary hearing, the court said that it would not punish either Dempsey of the Local ?for seeking to enforce rights believed to be guaranteed under the CBA.? In contrast to a situation were the accused or his or her representative ?have engaged in flagrantly dilatory delay tactics such as making themselves unavailable for a hearing,? said the court, in this instance Dempsey and the Local ?simply are seeking, by all lawful means, to enforce what they perceive to be their contractual rights.?

The bottom line: Judge Lebous annulled the Villages unilateral designation of a hearing officer to conduct the disciplinary hearing; directed the Village to follow the PERB hearing officer selection procedures as set forth in the Rules and CBA; and stayed the pending administrative hearing and all proceedings against Dempsey ?until said procedure is followed and/or arbitration is had between the parties hereto with regard to said issue.?

* Article XV of the CBA provided that [e]ach party agrees to have any dispute arbitrated by the Public Employment Relations Board (PERB). In addition, both parties agree to follow PERB's rules of procedure for dispute resolution, with the exception to Article XV, A6 of this contract.?

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_50785.htm

Full post as published by New York Public Personnel Law on May 06, 2010 (boomark / email).