Sunday, August 23, 2015

Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Grievant was employed as a bus driver with the Manhattan and Bronx Surface Transit Operating Authority. He worked as a bus operator for four hours per day, and he was also a union official and worked eight hours per day (on Transit Authority paid release time) on labor-management duties. In December of 2012 a bus dispatcher filed a complaint alleging that grievant had repeatedly sexually harassed her. In January 2013, at the request of the Union (Transport Workers Union of America, Local 100),  grievant was placed on union paid release time.

In April 2013 the Authority's EEO office issued a report finding reasonable cause to believe that grievant had engaged in conduct in violation of the Authority's sexual harassment policy. The TA presented disciplinary charges against grievant, but the Union disputed the Authority's power to maintain disciplinary action against an employee on union-paid release time. The Union claimed that placement on union paid release time created a "safe haven" protecting an employee from discipline.  The issue was submitted to an arbitrator  who upheld the Union's position. The Arbitrator concluded that the cba contained specific directives governing prohibited activities for employees on release time.

The Union filed an action seeking to confirm the award and the NY Supreme Court (the trial court) confirmed the award. The Authority appealed, and the Appellate Division has now reversed.

Initially the Court acknowledged  that:

in considering the issue before us, we must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.

Answering the question in the affirmative, the Court held that assuming the arbitrator's award was contractually correct, the decision itself was contrary to public policy. While noting the limited scope of review of arbitrators awards, and the substantial deference they are owed, the Court determined:

...this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections. Knowing that complaints against employees like [grievant] will be impeded by CBA protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority's ability to promptly remedy such behavior. It is also imperative that employers have the unfettered ability to discipline employees such as [grievant] in order to both punish the offender and to deter other employees from engaging in such behavior.

The Court noted that it was not substituting its judgment for that of the arbitrator on the contractual question, nor was it imposing a remedy it felt was appropriate. Rather, "we simply vacate the award as violative of public policy."

The Court's decision Matter of Phillips v. Manhattan & Bronx Surface TR. Operating Auth. can be found here.

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