                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 26, 2016                      521502
________________________________

In the Matter of NORMAN WOODS
   et al.,
                    Appellants-
                    Respondents,
      v                                     MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK
   et al.,
                    Respondents-
                    Appellants.
________________________________


Calendar Date:   March 23, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.

                             __________


      Lippes Mathias Wexler Friedman LLP, Albany (Sarah M.
Coligan of counsel), for appellants-respondents.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan of counsel), for respondents-appellants.

                             __________


Lynch, J.

      Cross appeal from a judgment of the Supreme Court
(McNamara, J.), entered March 16, 2015 in Albany County, which,
in a proceeding pursuant to CPLR article 78 and 7503, among other
things, converted the proceeding into a proceeding pursuant to
CPLR 7511 to confirm an arbitration award.

      Petitioner Norman Woods began working as a security
services assistant 1 with respondent State University of New York
(hereinafter SUNY) in 2001. In this capacity, he was a member of
a bargaining unit represented by petitioner New York State
                              -2-                521502

Correctional Officers and Police Benevolent Association, Inc.
(hereinafter NYSCOPBA). In March 2013, Woods received a notice
of discipline issued in accordance with the collective bargaining
agreement (hereinafter CBA) negotiated by and between respondents
and NYSCOPBA. In October 2013, following an arbitration held
pursuant to the CBA, an arbitrator issued an award wherein he
determined that Woods was guilty of four of the five asserted
charges and imposed a penalty of a fine and, as relevant here, "a
one (1) year probation period." In June 2014, on the same day
that his supervisor issued Woods a negative "final" probationary
evaluation, SUNY's director of human resources wrote to advise
that Woods' "disciplinary probationary appointment" at SUNY was
terminated. NYSCOPBA filed a grievance to challenge the June
2014 termination. In response, SUNY's director of employee
relations wrote to NYSCOPBA to advise that Woods was not
disciplined and "returned" the grievance. Petitioners commenced
this proceeding seeking to compel arbitration pursuant to CPLR
7503, or, alternatively, to vacate and annul the termination
pursuant to CPLR article 78. Supreme Court converted the
proceeding to one seeking to confirm the award pursuant to CPLR
7511 and directed the parties to seek clarification of the
October 2013 arbitration award. Both parties now appeal.

      As a general rule, public policy favors the resolution of
labor disputes through arbitration (see Matter of Town of
Haverstraw [Rockland County Patrolmen's Benevolent Assn.], 65
NY2d 677, 678 [1985]). That is not to say that every dispute is
arbitrable; rather, on a petition to compel arbitration, we
consider "two distinct inquiries," first, whether arbitration of
the issue is authorized by the Taylor Law and is permitted as a
matter of public policy, and, second, whether the parties agreed
in the CBA to submit the issue to arbitration (Matter of Board of
Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93
NY2d 132, 137-138 [1999]; see Matter of Franklin Cent. School
[Franklin Teachers Assn.], 51 NY2d 348, 355 [1980]).

      Initially, we reject respondents' argument that Woods
waived the right to pursue arbitration of the issue presented.
Although such right may be waived (see Matter of Campbell [State
of New York], 37 AD3d 993, 994 [2007]), here, Woods was not a
party to a last chance agreement with a clear and unequivocal
                              -3-                521502

waiver negotiated to resolve pending disciplinary charges.
Rather, we are faced with the dismissal of a probationary
employee with nearly 12 years of service in the bargaining unit
(compare id.). There is no apparent question that, generally,
arbitration of an employee's dismissal from service with a public
employer is authorized by the Taylor Law and not against public
policy (see Matter of Franklin Cent. School [Franklin Teachers
Assn.], 51 NY2d at 355; Board of Educ., Mt. Sinai Union Free
School Dist. v New York State United Teachers, 51 NY2d 994, 996
[1980]). Nor do respondents claim that the CBA includes an
arbitration clause that prohibits or limits an arbitrator's
authority to consider the issue.1 Instead, respondents contend
that by virtue of the October 2013 arbitration award, Woods was a
probationary employee, and the parties did not agree to arbitrate
issues regarding the termination of probationary employees. The
issue presented is thus focused on the second "distinct
inquir[y]," and our role is to determine whether there is a
"reasonable relationship between the subject matter of the
dispute and the general subject matter of the CBA" (Matter of
Board of Educ. of Watertown City School District [Watertown Educ.
Assn.], 93 NY2d at 143).

      Here, the CBA provides that "[d]iscipline shall be imposed
upon employees otherwise subject to the provisions of Sections 75
and 76 of the Civil Service Law only pursuant to this Article,
and the procedure and remedies herein provided shall apply in
lieu of the procedure and remedies prescribed by such sections of
the Civil Service Law which shall not apply to employees."
Further, it defines "discipline" as including "dismissal from
service" and provides that "[d]iscipline shall be imposed only
for just cause." We are mindful that one of the referenced
statutes provides that certain employees in the classified civil


    1
        The record before the Court includes only article 8 of
the CBA, the substantive provision applicable to discipline. We
do not construe article 8 as limiting the arbitrator's authority
to interpret the CBA. Rather, the provision evinces the parties'
intent to submit issues regarding discipline to arbitration
(compare Matter of City of Binghamton [Binghamton Firefighters,
Local 729, AFL-CIO], 20 AD3d 859, 860 [2005]).
                              -4-                521502

service who have completed a probationary period of employment
may not be disciplined "except for incompetency or misconduct
shown after a hearing upon stated charges" (Civil Service Law
§ 75 [1]). Contrary to respondents' interpretation, we do not
find that the cited provision of the CBA unambiguously excludes
Woods from its coverage. Indeed, it can be read to wholly
supplant the referenced provisions of the Civil Service Law and
to require a demonstration of "just cause" to discipline any
employee in the bargaining unit. While the dissent has concluded
that Woods was not disciplined, it is for an arbitrator to
interpret and apply the CBA, and we do not have authority to
consider the merits of the argument (see Matter of New York City
Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO,
6 NY3d 332, 336 [2005]; Matter of Board of Educ. of Watertown
City School Dist. [Watertown Educ. Assn.], 93 NY2d at 142; Matter
of Massena Cent. School Dist. [Massena Confederated School
Employees' Assn., NYSUT, AFL-CIO], 64 AD3d 859, 864 [2009]).
Since the CBA provision is ambiguous, an arbitrator must decide
whether it governs Woods' dismissal from service, and Supreme
Court should have granted the petition to compel arbitration (see
Matter of Board of Educ. of Watertown City School Dist.
[Watertown Educ. Assn.], 93 NY2d at 143; Board of Educ., Mt.
Sinai Union Free School Dist. v New York State United Teachers,
51 NY2d at 996; Matter of Franklin Cent. School [Franklin
Teachers Assn.], 51 NY2d at 355; Board of Educ. of Lakeland Cent.
School Dist. of Shrub Oak v Barni, 49 NY2d 311, 314-315 [1980]).
In light of this determination, we decline to consider the
parties' remaining contentions.

     Peters, P.J., and Aarons, J., concur.


Rose, J. (dissenting).

      We respectfully dissent. Here, we are not faced with a
collective bargaining agreement (hereinafter CBA) containing a
broad arbitration clause. Instead, as the majority notes, the
record before us includes only article 8 of the CBA, and the
arbitration provided for therein is narrowly limited to
disciplinary actions. In considering the prescribed second-step
question of "'whether the parties did agree by the terms of their
                              -5-                521502

particular arbitration clause to refer their differences in this
specific area to arbitration'" (Matter of Board of Educ. of
Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132,
138 [1999], quoting Matter of Acting Supt. of Schools of
Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42
NY2d 509, 513 [1977]), we cannot agree that the termination of
petitioner Norman Woods' probationary employment can reasonably
be interpreted as a disciplinary action.

      Woods was placed on probation as one of two penalties
imposed for the charges of dereliction of his duties that were
found to have been proven in his 2013 disciplinary proceeding.
Prior to the end of his one-year probationary period, he was
terminated as a result of a final probationary evaluation, which
found that his job performance was unsatisfactory. He was not
charged with misconduct, dereliction of his duties or other
actions that would typically give rise to disciplinary action
under article 8 of the CBA. Nonetheless, the majority finds an
ambiguity as to whether Woods' termination was a disciplinary
action. In our view, the majority reads too much into the term
"disciplinary probation," a term that is not used in article 8 or
in the original decision of the prior arbitrator imposing
probation as a penalty.

      When we confront this question of whether the parties
agreed to arbitrate issues regarding the termination of
probationary employees, the second-step inquiry requires us to
"merely determine whether there is a reasonable relationship
between the subject matter of the dispute and the general subject
matter of the CBA" (Matter of Board of Educ. of Watertown City
School Dist. [Watertown Educ. Assn.], 93 NY2d at 143; see Matter
of Odessa-Montour Cent. School Dist. [Odessa-Montour Teachers
Assn.], 271 AD2d 931, 932–933 [2000]). To warrant allowing an
arbitrator to decide the issue here, there must be a reasonable
relationship between Woods' termination from probation and some
provision in article 8. If no such relationship exists, the
issue is not arbitrable as a matter of law (id.).

      Such a relationship cannot be based upon the term
"disciplinary probation" because the subject matter of the
dispute is not the imposition of the penalty of probation by the
                              -6-                521502

prior arbitrator in 2013. Instead, petitioner is seeking
arbitration of the termination of probation in June 2014 due to
poor job performance. Further, the terms "probation" and
"disciplinary probation" are not defined or listed anywhere in
article 8 of the CBA, termination while on probation is not
included as a disciplinary action and article 8 does not even
mention placement on probation as a disciplinary penalty. To the
extent that the majority finds ambiguity in the language of
section 8.1 of article 8, which describes the employees upon whom
discipline shall be imposed, that ambiguity would only be
relevant if termination from probation were a disciplinary
action. Reasoning based on that ambiguity merely assumes its
conclusion. In any event, it seems clear enough to us that the
employees referred to in section 8.1, and to whom article 8
applies, are limited to those who are "otherwise subject" to
Civil Service Law §§ 75 and 76. Those sections describe only
employees who have completed a probationary period of employment.
Inasmuch as Woods did not complete probation, article 8 does not
apply to him. Although probation was a penalty imposed on Woods
by the prior arbitrator for his prior conduct, there is nothing
in article 8 that distinguishes the subsequent termination of his
probation from termination of probation imposed in other
circumstances, such as with a new hire, promotion or transfer
(see 4 NYCRR 4.5 [a]).

      There is yet another basis for rejecting as unreasonable
any interpretation that would find termination at the end of
Woods' probationary period to be a disciplinary action. The main
consequence of an employee being on probation is that he or she
"may be discharged without a hearing and without a statement of
reasons in the absence of any demonstration that dismissal was
for a constitutionally impermissible purpose or in violation of
statutory or decisional law" (Matter of York v McGuire, 63 NY2d
760, 761 [1984]; see Matter of Campbell [State of New York], 37
AD3d 993, 995 [2007]; Matter of Mahoney v Mills, 29 AD3d 1043,
1045 [2006], lv denied 7 NY3d 708 [2006]; see also 4 NYCRR 4.5
[a]). If the termination of Woods' probation were to be viewed
as invoking the protections of article 8, then the prior
arbitrator would have imposed no penalty upon Woods because he
still would have the same rights to have his grievance arbitrated
and his conduct judged by article 8's "just cause" standard.
                              -7-                   521502

Thus, the interpretation that the majority suggests would
effectively render the prior disciplinary penalty of probation to
be meaningless. In the absence of express and specific language
in article 8 of the CBA evincing an intent to consider
termination of a probationary employee to be a disciplinary
action (see Matter of City of Binghamton [Binghamton
Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [2005]), we
would find no reasonable relationship between Woods'
circumstances and the general subject matter of article 8 (see
Matter of Board of Educ. of the Rondout Val. Cent. Sch. Dist.
[Rondout Val. Fedn. of Teachers], 101 AD3d 1446, 1448 [2012], lv
denied 22 NY3d 853 [2013]; Matter of Massena Cent. School Dist.
[Massena Confederated School Employees' Assn., NYSUT, AFL-CIO],
82 AD3d 1312, 1315-1316 [2011]; Matter of Police Benevolent Assn.
of N.Y. State Troopers, Inc. [Governor's Off. of Empl.
Relations], 17 AD3d 972, 974 [2005]; Matter of Odessa-Montour
Cent. School Dist. [Odessa-Montour Teachers Assn.], 271 AD2d at
932–933; see also Matter of Sherwood [Kirkpatrick], 108 AD3d 979,
980 [2013]).

     Lahtinen, J., concurs.



      ORDERED that the judgment is reversed, on the law, without
costs, and petition to compel arbitration granted.




                              ENTER:




                              Robert D. Mayberger
                              Clerk of the Court
