Presently before the Court is petitioner’s application by Order to Show Cause seeking to vacate an arbitrator’s Opinion and Award. Petitioner also seeks a Temporary Restraining Order (TRO) directing that respondent Christopher Mason be placed on unpaid administrative leave pending the outcome of this matter. Only the application for a TRO is addressed at this juncture, with argument having been heard in accordance with the Uniform Rules for Trial Courts (22 NYCRR) §202.7 (f). On or about August 4, 2021, Mason and William Butler — both employed by petitioner in its Department of Public Works (hereinafter DPW) — were involved in an altercation wherein Mason grabbed Butler and pushed him against a building, with Butler suffering minor injuries as a result. Mason further made threatening comments to Butler, “includ[ing] a threat that [he] would ‘kill’ [him].” Mason was subsequently arrested and, on April 21, 2022, he pleaded guilty to harassment in the second degree. Butler also obtained an Order of Protection against Mason. As an employee of petitioner’s DPW, Mason is a member of respondent CSEA, Local 1000 AFSCME, AFL-CIO, City of Glens Falls Unit #9001-00 (hereinafter CSEA) and his employment is governed by, inter alia, a certain Collective Bargaining Agreement (hereinafter CBA) covering the period from January 1, 2018 to December 31, 2021. In accordance with the grievance procedure outlined in this CBA, Mason was served with a Notice of Suspension without pay on August 9, 2021. He was thereafter served with a Notice of Pre-Disciplinary Meeting on August 10, 2021, with the meeting scheduled for August 12. Immediately following that meeting, Mason was served with a Notice of Discipline advising that his “employment [was] terminated effective upon receipt of [the] Notice” [emphasis in original]. The Notice listed four charges against Mason: (1) violation of the CBA for committing an act of misconduct under article 14, namely “§14.2.4 ‘Disciplinary measures are appropriate when an employee’s performance of duty, personal relationships with others, personal conduct, etc., is determined by management to be unsatisfactory or unacceptable, and management determines that disciplinary action is in order;’” (2) violation of the CBA for committing an act of misconduct under article 14, namely “§14.2.1 ‘Discipline is the responsibility of management and shall be imposed by the Department Head only for incompetence or misconduct;’” (3) violation of “Section 3 ‘Standards of Conduct’ and ‘Our Common Work Values’ from [petitioner's] Policy and Procedure manual;” and (4) “violation of the City of Glens Falls Workplace Violence Prevention Policy.” On or about August 30, 2021, CSEA served petitioner with a grievance relative to Mason’s termination. On September 10, 2021, petitioner rejected his grievance as untimely. In this regard, §13.2.1 of the CBA provides that “[t]he employee shall present the grievance in writing on forms to be provided by the City to the employee’s immediate supervisor not later than ten (10) work day[s] after the date on which an act or omission giving rise to the grievance occurred or became known to the employee.” According to petitioner, because Mason’s employment was terminated on August 12, 2021, the last day for him to file a grievance was August 27, 2021. CSEA thereafter requested a meeting with petitioner, which meeting was held on September 13, 2021 and the grievance was verbally denied. On October 21, 2021 CSEA submitted a memo to petitioner requesting Mason’s reinstatement, and this too was denied. CSEA then submitted a Demand for Arbitration to petitioner on November 29, 2021, with the parties then proceeding to arbitration through the Public Employment Relations Board. The arbitrator conducted the hearing on April 25, 2022, with petitioner arguing that the grievance was not served in a timely manner and, as such, should be deemed settled. In this regard, petitioner relied upon §13.3.4 of the CBA which provides that “[t]he failure by the grievant…to file an appeal within the time limits specified shall be deemed to be a settlement of the grievance.” Petitioner further argued that the grievance was without merit in any event, as termination was the appropriate penalty for Mason’s workplace violence. Respondents, on the other hand, argued that petitioner failed to provide Mason with a grievance form as required under §13.2.1 of the CBA and, as such, the grievance should be accepted notwithstanding its untimeliness. Respondents further argued that petitioner did not suffer any prejudice, as Mason advised of his intention to file a grievance when he was terminated on August 12 and the grievance was only a few days late. Finally, respondents argued that the penalty of termination was excessive because, inter alia, Butler was “negatively characterized by several witnesses as ‘getting under people’s skin’” and “Mason sought the assistance of [two] supervisors…regarding claims Butler was making against him[, and n]either supervisor intervened.” On June 11, 2021, the arbitrator issued his Opinion and Award with an initial finding that the grievance should be considered on the merits notwithstanding its untimeliness. Specifically, the arbitrator found as follows: “The purpose of time limits in grievance procedures is quite clear. The limits assure that grievances will not grow stale, leaving the parties in a prolonged state of uncertainty regarding a claim of a violation. Where notice has been served of an intent to grieve, even if in an irregular manner, and where the parties mutually engage in moving matters along as here, and where no evidence that a party has been prejudiced by procedural error is present, errors of a clerical nature that occur in the processing of grievances do not become dispositive of the grievance.” The arbitrator further found the penalty of termination to be excessive. In this regard, the arbitrator reasoned: “In weighing the appropriateness of the penalty being sought — the most extreme available to [petitioner] — several factors should be considered. There were unresolved underlying grievances between the Mason, Butler and others that [petitioner] was aware of and had taken partial steps to redress, Butler replied to Mason’s initial provocation by going ‘nose to nose’ with him and Mason, very shortly after the incident, acknowledged his conduct as inappropriate for which he offered apologies. “The aggravating and mitigating considerations at play here do not offset each other by a long shot. Mason’s conduct was deplorable, his uncontrolled rage constituted a real threat of serious injury and is inexcusable. The fact that Mason’s conduct on August 4 appears to be well outside of his normal behavior and his ready contrition for that behavior augers well for his rehabilitation. “On balance, the City acted properly to remove Mason from the workplace, however, the facts are insufficient to sustain the ultimate penalty of discharge.” According to the arbitrator, petitioner was “authorized to suspend Mason from employment but not to terminate him,” with petitioner directed to “return [Mason] to the work force [within 10 days] without back pay and benefits.” Petitioner returned Mason to the work force in accordance with this Opinion and Award, but he has been placed on paid administrative leave. A TRO “achieves[] the salutary purpose of maintaining the status quo” (Pantel v. Workmen’s Circle/Arbetter Ring Branch 281, 289 AD2d 917, 918 [2001]; see Matter of New York State Crime Victims Bd. v. Jackson, 4 AD3d 710 [2004]) and “may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless [respondent is] restrained before the hearing can be had” (CPLR 6301; see Pantel v. Workmen’s Circle/Arbetter Ring Branch 281, 289 AD2d at 918). Here, petitioner contends that it will “be prejudiced by continuing to pay…Mason, as [it] has no ability to recover these funds if [it] is correct in this application; however, if [it] is incorrect, the Court can direct [it] to pay…Mason retroactive to the date that he is placed on unpaid leave.”According to petitioner, Mason “already found new employment and thus, the…request…to transfer to unpaid suspension is not prejudicial to [him].” While these points are well taken, the Court nonetheless finds that petitioner is not entitled to a TRO. While the TRO maintains the status quo as it existed prior to issuance of the Opinion and Award, it does not maintain the status quo as it currently exists. Further, it does not appear — at this juncture, anyway — that petitioner is likely to prevail in this proceeding. CPLR 7511 (b) (1) provides, in pertinent part: “[An arbitration] award shall be vacated on the application of a party who…participated in the arbitration…if the court finds that the rights of that party were prejudiced by: “(i) corruption, fraud or misconduct in procuring the award; or “(ii) partiality of an arbitrator appointed as a neutral…; or “(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or “(iv) failure to follow the procedure of this article….” Petitioner contends that the arbitrator exceeded his power and the award must therefore be vacated — but a review of the record contradicts this contention. Indeed, the Opinion and Award includes a balanced discussion of all the relevant facts and concludes that the charges should be sustained, but with a lesser penalty. While petitioner asserts that the arbitrator should have deemed the grievance settled in accordance with §13.3.4 of the CBA, petitioner appears to conflate the filing of a grievance with the filing of an appeal. Each constitutes a separate step in the 4-step grievance process, with step 1 involving the filing of a grievance and steps 2 and 3 involving the filing of an appeal. To the extent that §13.3.4 of the CBA speaks only to the late filing of an appeal, it appears to be inapplicable to the late filing of Mason’s grievance. Based upon the foregoing, petitioner’s application for a TRO pending the return date of the Order to Show Cause is denied. The Order to Show Cause is annexed hereto and issued simultaneously herewith. A return date of October 21, 2022 has been assigned, with the application accepted on the submission of papers only. Therefore, having considered the Petition with exhibits attached thereto, verified September 10, 2022, Affirmation of Nicole Fish, Esq., dated September 10, 2022, and Memorandum of Law of Nicole Fish, Esq., dated September 10, 2022, submitted in support of the application for a TRO; and the Affirmation of Eric E. Wilke, Esq. with exhibits attached thereto, dated September 22, 2022, and Memorandum of Law of Eric E. Wilke, Esq., dated September 22, 2022, submitted in opposition to the application for a TRO; and oral argument having been heard on September 23, 2022 with Nicole Fish, Esq. appearing on behalf of petitioner and Eric E. Wilke, Esq. appearing on behalf of respondents, it is hereby ORDERED that petitioner’s application for TRO pending the return date of the Order to Show Cause is denied. Dated: September 27, 2022
