September 2003 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

COUNTY DELAYS ADD UP TO CSEA WIN

This month, I bring to your attention a courageous decision by an Arbitrator upholding an extremely important right for all CSEA Local 830 members. Section 10-9.5(e) of the Collective Bargaining Agreement mandates that in all disciplinary arbitration cases, "Neither the Union nor the Office of Labor Relations shall be permitted more than two (2) adjournments of any arbitration case… Default will be granted against the party requesting more than two (2) adjournments."

Back in May of 2002, a CSEA member was terminated from employment with the County under Section 10 of the CBA. After filing a request for review, the matter was referred to "expedited arbitration".

After the County adjourned the first arbitration date, scheduled for November, 2002, hearings commenced in 2003. At the April 7, 2003 arbitration, none of the County's witnesses showed up so the County, on the record, requested its second adjournment.

The arbitration continued on April 15, 2003 and was scheduled to continue on April 21, 2003. At the April 15, 2003 hearing, the County decided to present additional witnesses and adjourned the hearing scheduled for April 21, 2003 in order to arrange their attendance.

Thereafter, I moved for a default judgment based on the County's third adjournment. In granting the motion and ordering the employee reinstated with full back pay, overtime missed, restoration of leave entitlements and expunging the termination notice, the Arbitrator put the County on notice that its delay of cases has serious consequences.

In the words of the Arbitrator:

"As the Union correctly asserts in its June 9, 2003 letter in support of its Motion: Section 10-9.5(e) is clear and unambiguous on its face. Both parties are charged with the responsibility of knowing the terms of the Collective Bargaining Agreement."

"As the Arbitrator, I repeatedly stated that I did not require the County to do so: 'I don't compel any of it because it's your case and you can present it as you see fit (Tr. 527) … I wouldn't physically require him [a prospective off-site witness for the County] to be brought in … perhaps we have testimony either by telephone or video telephone, and I'm amenable to any or all of those (Tr.528) … like I said, I certainly wouldn't require you [the County] to bring in somebody from out of state … we could do this by telephone or by video telephone … that clearly your [the County's ] call (Tr.530) … I prefer, as always, to leave the advocacy to the advocates (Tr.535) … I don't compel or require anything (536) … As I've indicated, and I'll say again, I'm not requiring the County to bring in any of these folks (Tr.539)…"

Continuing the quote from the Arbitrator:

"At the third hearing on April 15, 2003, the County nevertheless knowingly and voluntarily requested its third adjournment of the hearing date previously scheduled for April 21, 2003. The County's attorney stated: "… I'll have to request a lengthy adjournment beyond the 21st [of April, 2003] … I'm going to request that we adjourn it for a longer date than the 21st [of April, 2003]." (Tr.541, 544) He further stated that he was requesting the County's (third) adjournment upon the direction of his client, Mr. David Greene, Director of Labor Relations for the County."

The Arbitrator also noted:

"Mr. Greene also stated on the record that the County wanted to bring to the arbitration additional witnesses based in Pennsylvania and in Syosset, New York: 'We're going to give you the cake, the icing and a cherry … I [Director Greene, for the County] prefer to bring them [additional witnesses for the County] in [to the arbitration to testify]." (Tr.539-540.

"Consequently, the County's attorney summarized that, because his County client had so expressly said that the County should bring additional witnesses to the arbitration, and, consequently, adjourn the scheduled April 21, 2003 hearing date, he thereupon did so adjourn the arbitration for the third time: "… since my client [the County and Director Greene] have said that's what I [the County's attorney] should do, I will …" (Tr. 543).

The reader must also be aware that I, as the Union's attorney, gave the County every opportunity to correct their default before moving for default. Again, from the Arbitrator:

"As the Union's attorney correctly points out in his June 9, 2003 letter in support of the Union's Motion for Default Judgment, 'I [the Union's attorney] gave the County every opportunity to cure their request for adjournment by waiting to see if indeed they were not going to go forward on April 21st. At any time prior to April 21st the County could have contacted the arbitrator and the undersigned [the Union's attorney] to say that they do not need the adjournment, that they were prepared to go forward on the 21st or to say that they decided not to call any other witnesses. They did not do this, but instead decided to live by their decision to adjourn the [April] 21st [scheduled hearing date.]"

"If the County had timely reviewed its file following the April 15 hearing, the County would have realized that the third adjournment by the County, of the April 21, 2003 scheduled hearing date, placed the County in the default position. As the Union correctly states, the County could have then, prior to or on April 21, 2003, arranged to present additional witnesses' testimony by telephone on April 21, 2003, could have arranged to present additional witnesses in person on April 21, 2003, or could have rested. The County exercised none of these alternatives."

In ruling in favor of the Union, the Arbitrator held:

"I find that the County alone did knowingly and voluntarily adjourn the arbitration for the third time, by, at the April 15, 2003 hearing, adjourning the hearing previously scheduled for April 21, 2003.

"I find the Union's Motion is timely… As United States Supreme Court Justice Felix Frankfurter, inter alia, reputedly often said, the history of the law is, in large measure, the history of procedure. The parties deliberately negotiated the plain default provision in the collective bargaining agreement, and both parties are fully entitled to invoke it by the appropriate motion practice. The Union has done so."

To date, the County has not put the employee back to work, has not paid any of the monies owed and has stated that they will not use this Arbitrator, a well-respected arbitrator and Law School Professor, again.

As can be seen, there will be some length of time before this matter is finally resolved.

But you the members of this Union should be encouraged to know that we will fight for your rights and that the arbitrators on our panel will uphold your rights when the County violates those rights.