Opinion
0407301/2007.
August 12, 2008.
DECISION, ORDER AND JUDGEMENT
Petitioner seeks to vacate an arbitration award dated October 4, 2007 that converted a disciplinary procedure into a medical leave application and granted respondent Williams a medical leave of absence. Respondents cross-move to confirm the award.
Petitioners sought to terminate Williams's employment with the New York City Human Resources for sixty days for several acts of misconduct. Petitioners alleged that Williams committed fraud, engaged in intimidating behavior and improper physical contact with other employees.
Petitioners assert that Williams committed fraud by applying for and collecting unemployment benefits, while she was under suspension, by submitting false documents in support of her claim.
According to petitioners, Williams struck, "elbowed", a colleague, tripped a pregnant fellow employee, causing her to fall on her stomach, was insubordinate to a superior, was discourteous to other employees, abused punctuality and attendance regulations, failed to follow supervisors' instructions and otherwise acted in a manner detrimental to the City of New York.
Petitioners argue that the agreement between petitioners and the respondent union provides that disciplinary matters may be determined by arbitration. However, medical leave matters are not disciplinary and are not subject to arbitration (Civil Service Law §§ 72, 75). Petitioners terminated Williams because of her misconduct (Civil Service Law § 75). Williams had never applied for medical leave under Civil Service Law § 72; nor had petitioners attempted to place her on medical leave.
The collective bargaining agreement, between petitioners and respondent union defines the term grievance in Article VI Section le. The section states that a grievance is
"A claimed wrongful disciplinary action taken against a permanent employee covered by Section 75(1) of the Civil Service Law. . .upon whom the agency head has served written charges of incompetence or misconduct while the employee is serving in the employee's permanent title or which affects the employee's permanent status."
The collective bargaining agreement gives an affected employee the right to arbitrate his or her grievance.
A decision placing an employee on medical leave, or denying medical leave, is not subject to arbitration. Moreover, the decision to place an employee on medical leave is discretionary.
Despite the fact that medical leave questions are not arbitrable under the collective bargaining agreement, the arbitrator permitted respondents to offer testimony about Williams's mental health. The arbitrator concluded that petitioners knew or should have known that Williams "Had mental health issues warranting an evaluation for fitness of duty, pursuant to Sec. 72 of the Civil Service Law; such an evaluation should have been ordered, and based on the evidence in the record, would have resulted in her being placed on a medical leave of absence."
"The Grievances are sustained in part and denied in part. With respect to the sixty-day suspension and first termination, they are converted to medical leaves of absence, based upon the Grievant's history of psychiatric illness. The leave shall be deemed to have commenced on the first date arbitral determination of the asserted wrongfulness of the disciplinary action was possible, August 4, 2006.
Upon successful completion of the above-cited medical leave of absence, certified by appropriate medical authority, pursuant to Sections 72 and 73 of the Civil Service Law, an arbitrator chosen by the parties shall determine whether her termination for U.I.B. fraud was `wrongful'. If it is found to be `wrongful', the Grievant shall be reinstated with no back pay."
Under Civil Service Law § 72, the appointing authority, the governmental employer, has the discretion to compel the employee to undergo a medical examination to determine whether the employee must go on medical leave. While an employee may seek a hearing to determine whether that exercise of discretion was proper, the employee may not arbitrate the medical leave determination. Moreover, petitioner, under Civil Service Law § 72, has the power to choose the physician who will conduct the medical examination.
The arbitrator exceeded his authority by awarding relief Williams was not entitled to under the arbitration agreement or by statute. Therefore, the award must be vacated and the matter remanded for a new hearing and award solely on the disciplinary action petitioner took against her, without the question of medical leave being the subject of the hearing and award.
Accordingly, it is
ADJUDGED that the petition is granted and the award vacated, and it is further
ORDERED that the matter is remanded for proceedings consistent with this decision, order and judgment, and it is further
ORDERED that the cross motion to confirm the award is denied.
This constitutes the decision, order, and judgment of the court.