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Philip B. Abramowitz, for appellant.
Leonard A. Mancini, for respondent.
MEMORANDUM:
The order of
the Appellate Division should be affirmed, without costs.
Petitioner,
a correction officer with a 14-year record of service, was terminated from
his position as a result of an incident in which he allegedly falsely accused
another employee
of having sexual relations with an inmate. The employee denied the
misconduct and filed a complaint against petitioner for making a false
report. Petitioner, in turn, denied having made
the statement. The dispute culminated in the filing of disciplinary
charges against petitioner, and the matter proceeded to arbitration in
accordance with the applicable collective
bargaining agreement. Having been represented by an attorney
provided by his union, petitioner was ultimately found guilty of having
violated two departmental rules and was discharged from his position.
Petitioner subsequently
brought the present proceeding to vacate the arbitration award, arguing
for the first time that the charges against him had been initiated to retaliate
for his
having testified in a federal court action regarding pervasive racial
bias at a Corrections Department facility. According to petitioner,
he had not raised this argument in the arbitration
proceeding because his union attorney had "listened to none of this,
had no time for it and wanted [him] to plead guilty."
The Supreme
Court granted the requested relief and vacated the arbitration award.
On respondent's appeal, however, the Appellate Division reversed and reinstated
the award. We agree with the Appellate Division that petitioner's
submissions does not demonstrate a cognizable legal basis for vacating
the outcome of the arbitration proceeding.
Petitioner's
contention that the award is violative of public policy (see, e.g., Matter
of Sprinzen v Nomberg, 46 NY2d 623) is unpersuasive because it rests on
an unproven premise,
i.e., that the disciplinary charges against him were initiated
and pursued to retaliate for his role in the federal bias proceeding.
The retaliatory motive of petitioner's prosecutors
was a factual matter that bore directly on the validity of the charges
and, as such, was an issue for the arbitrators to resolve. To ask
the court to vacate the award on the basis of
the public policies against retaliatory discharge is to beg the very
question that was placed before the arbitrators.
Petitioner's
alternative argument based on CPLR 7511(b)(i), which provides for vacatur
in the event of corruption, fraud or misconduct in procuring the award,
fares no
better. The "corruption, fraud or misconduct" to which petitioner
refers is the union attorney's alleged unwillingness to pursue his claim
of retaliatory motive -- conduct which
petitioner asserts was a breach of the union's duty of fair representation
(see, Hines v Anchor Motor Freight, Inc., 424 US 554; Vaca v Sipes, 386
US 171). Traditionally, such fair
representation claims are asserted in plenary actions in which the
court is asked to determine both whether the union's duty was breached
and whether the collective bargaining agreement was violated (see, e.g.,
Del Costello v International Brotherhood of Teamsters, 462 US 151, 163-164).
Thus, even assuming that petitioner had a viable fair-representation claim
under New York State law (see generally, Matter of Civil Serv. Bar Assn.
V City of New York, 64 NY2d 188, 195-196; Sinicropi v New York State Public
Employees Relations Bd., 125 AD2d 386; Jackson v Regional Tr. Serv., 54
AD2d 305), a proceeding to vacate the arbitration award was not the proper
forum for asserting it.[1]
We have examined petitioner's remaining contention that the arbitrator's
award was irrational and have found it to be without merit.
F O O T N O T E
1. The flaw in the dissent's position is that it assumes, without benefit
of a hearing or appropriate factfindings, that the union did, in fact,
breach its duty of fair representation.
Of course, in the absence of a finding that such a breach has occurred,
there is no legal basis for vacating the arbitration award. Indeed,
it is precisely because the discrete fair
representation question still needs to be litigated that a separate
plenary action is required.
CIPARICK, J. (dissenting):
We believe that
the arbitration award directing petitioner's termination should be vacated
on the ground that it is violative of public policy (see, M/O Silverman
[Benmor Coats,
Inc], 61 NY2d 299, 308; Garrity v Lyle Stuart, Inc, 40 NY2d 354, 357)
and that there should be a rehearing (see, CPLR 7511[d]). Therefore, we
respectfully dissent.
Shortly before
his termination, petitioner served as the Inmate Program Placement Coordinator
at the Elmira Correctional Facility. It is fair to say that the program
petitioner was charged with administering was an attempt by prison
administrators to address the charges of discrimination leveled by minority
inmates in a Federal class action against
prison officials (see, Santiago v Miles, 774 F Supp 775, 783).
The class action alleged pervasive discrimination by prison officials in
housing assignments, job placements and disciplinary matters involving
minority inmates, which the Federal District Judge found to be substantiated
by convincing statistical and testimonial evidence, including extensive
testimony by petitioner (see, Santiago, supra, 774 F Supp, at 783-784,
795-90, 801). Particularly significant is the following finding by
the District Court Judge:
[Petitioner's]
testimony was remarkable in several respects. The testimony showed
just how entrenched the racial bias was at Elmira in some of
the staff. Time and again
[petitioner's]
efforts to make race-neutral program assignments were thwarted by
staff and guards. Incredibly, in a few instances, [petitioner] was
himself harassed and
intimidated
by the offending guards. Apparently, nothing was done by top
administrators concerning [petitioner's] complaints (id., at 801).
Petitioner relates
that shortly after his testimony in the Federal class action, he was transferred
to a different prison facility where he was met with unwelcoming remarks
by the
Deputy Superintendent. The misconduct charges followed soon thereafter.
Despite the pattern of hostility exhibited toward petitioner, which arguably
intensified after his testimony in the Federal class action, the union
attorney assigned to represent him in the arbitration regarding the alleged
incidents of misconduct summarily dismissed the relevancy of petitioner's
involvement in the Federal class action -- assuring petitioner he would
never lose his job -- and did not raise this matter at the arbitration
(see, Civil Service Law 75-b[3]; see also, M/O
Civil Service Bar Assn, Local 237, Int'l Brotherhood of Teamsters v
City of NY, 64 NY2d 188, 196).
While the Majority
points out that whether the charges against petitioner were trumped up
in retaliation for his participation in the Federal class action, in contravention
of
Civil Service Law 75-b(2)(a)(ii), is an issue for the arbitrator,
the fact is that this was never placed in issue by petitioner's union-appointed
legal representative and was not
even considered by the arbitrator. Because of the strong public
policy decrying retaliatory discharges, expressed in Civil Service Law
75-b(2), together with the public policy, as
articulated by the Supreme Court, recognizing an exception to the finality
of arbitral awards procured at the expense of the employee's right to fair
representation (see, Hines v Anchor
Motor Freight, Inc, 424 US 554, 570-571; Vaca v Sipes, 386 US 171,
177), we conclude that the award should be vacated, a determination compelled
by the convincing factual findings and
legal conclusions of the Federal District Court Judge in Santiago v
Miles, supra. A rehearing before a different arbitrator, at which
petitioner may appear with new counsel, should be held for the arbitrator
to consider inter alia the genesis and nature of the misconduct charges,
including whether they were pretextual and brought in retaliation for petitioner's
testimony in Santiago v Miles, supra; whether petitioner's remarks were
in fact "official," and, if so, whether such remarks were uttered in disregard
of his superior's orders not to "play the [Department of Corrections] game"
(see, CPLR 7511[d]).
Accordingly,
the order of the Appellate Division should be reversed.
* * * * * * * * * * * * * * * * *
Order affirmed, without costs, in a memorandum. Chief Judge Kaye
and Judges Simons, Titone, Bellacosa and Levine concur. Judge
Ciparick dissents and votes to reverse in an opinion in which Judge Smith
concurs.
Decided December 19, 1996