Labor & Employment Law

Alternatives to Section 75 disciplinary procedures

By Harvey Randall, Esq.

Alternatives to Section 75 disciplinary procedures
Matter of Oxford Employee Support Personnel Association v Oxford Academy & Central School District, 2007 NY Slip Op 04210, Decided on May 17, 2007, Appellate Division, Third Department

Civil Service Law Section 76.4 [See NOTE 1 below] authorizes the negotiation of alternatives to the disciplinary procedures set out in Section 75 of the Civil Service Law. As the Oxford decision by the Appellate Division demonstrates, unless the collective bargaining agreement specifically set out the fact that an alternative disciplinary procedure has been agreed upon, Section 75 controls.

Oxford Academy served one of its school bus drivers, Donald Wall, with disciplinary charges pursuant to Section 75 after Wall was involved in an accident while driving his bus in the school parking lot.

The Association objected to the District?s action. It contended that if the District wished to initiate disciplinary action against Wall, the grievance/arbitration procedures set out in the collective bargaining agreement between Association and the District rather than Section 75 had to be used.

Notwithstanding the Association?s claim, a Civil Service Law Section 75 disciplinary hearing was conducted. The Hearing Officer found Wall guilty of the charges filed against him and recommended that he be dismissed from his position. The School Board accepted the Hearing Officer?s findings and recommendation and terminated Wall.

The Association then attempted to compel arbitration, only to have its Article 75 petition rejected by Supreme Court. This, in turn, prompted the Association?s appeal to the Appellate Division.

The Appellate Division said that the only issue to be resolved was whether the Association and the School District ?expressly and unequivocally agreed to arbitrate the dispute in question.?

Critical to the court?s resolution of the appeal was the following language set out in the collective bargaining agreement between the parties:

A grievance shall mean a complaint by an employee in the bargaining unit (1) that there has been as to the employee a violation, misinterpretation or inequitable application of any of the provisions of this Agreement or (2) that the employee has been treated unfairly or inequitable (sic) by reason of any act or condition which is contrary to established policy or practice governing or affecting employees, except that the term grievance shall not apply to any matter as to which (1) a method of review is prescribed by law [emphasis supplied].

This language, in the opinion of the Appellate Division, precluded processing the disciplinary action initiated against Wall under to the contract grievance procedure. The court, citing Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521, said:

Quite clearly, Civil Service Law Section 75 provides a method of review for alleged employee misconduct and, pursuant to the exclusionary language of the bargaining agreement, relegates the parties to such procedure rather than the grievance/arbitration procedures provided by the bargaining agreement.

Accordingly, said the court, Supreme Court quite properly dismissed the Association?s application to compel arbitration.

Full post as published by New York Public Personnel Law on March 12, 2008 (boomark / email).