February 2004 Legal Update

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

CSEA SENIORITY VICTORY SHOULD CLEAR BACK-LOG

This month, I am happy to bring to you an outstanding decision by Arbitrator Howard Edelman that hopefully will stop the County's stalling of our Seniority grievances. For over one year, the County has refused to go to arbitration on Seniority case claiming that the Federal Court decision in Ciambriello v. County of Nassau prevents seniority grievances from going forward. CSEA has consistently challenged the County's position and finally, it was agreed to submit the issue to Arbitrator Edelman for decision.

The issue Arbitrator Edelman was to decide was "Does the holding in Ciambriello bar the Arbitration of this dispute?"

Arbitrator Edelman's answer was: "After carefully reviewing the record, I am convinced that it does not and that additional hearings must be scheduled. This is so for a number of reasons.

First, Ciambriello does not alter the meaning of Section 12-2. As the Union correctly noted, the Second Circuit made only the following observation with respect to that provision:

The question of whether Ciambriello's promotion violated §12-2 depends more than his and other candidates' relative seniority. While less senior than other candidates, Ciambriello may have possessed superior 'ability' or 'adaptability,' or it might not have been 'practicable' or 'consistent with the needs of the department' to promote someone other than Ciambriello. Of course, we need not - and cannot - conclude that Ciambriello did in fact possess superior ability or adaptability; rather, we hold only that these issues cannot be resolved on a motion to dismiss…

These comments simply reflect the plain language of Section 12-2. They indicate that there are five criteria to be evaluated when considering employees for promotion. They do not establish other criteria. As such, they leave Section 12-2 alone, as it were. Thus, since promotion disputes before Ciambriello were arbitrable under this provision, they are clearly arbitrable after Ciambriello, as well."(emphasis added).

"there remains the due process rights of the incumbents to consider. In Ciambriello, the Circuit Court held that the plaintiff's due process rights had been violated. It noted he had no opportunity to appear and defend himself in the Arbitration proceeding which resulted in his demotion.

This defect has been cured in the instant dispute. The incumbents have been and must continue to be afforded the opportunity to appear at the hearing, as well as the opportunity to be heard in defense of their assertion they were properly promoted. Thus, the due process violation that was found in Ciambriello will not occur in the instant proceeding…

In sum, the seniority grievance, 124-10, Brown et al, remains viable notwithstanding the Ciambriello decision. The promotees have been accorded due process rights consistent with the Ciambriello holding. Accordingly, hearings on the merits of the instant dispute shall be scheduled. It is so ordered."

With those words, Arbitrator Edelman has left no doubt that the County's arguments were unavailing, that the CSEA was correct and that Section 12-2 of the CBA is alive and well. There is no excuse now for the County not to agree to arbitrate seniority grievances and we look forward to arbitrating the back log of cases immediately.

What is interesting to note is that if, as part of any seniority case, the County is going to seek to remove the already promoted person, the County must notify the promoted employee and afford that employee an opportunity to be heard at the arbitration prior to the employee's demotion. If the County fails to do so, the promoted employee cannot be removed and the arbitrator can also order the grieving employee whole monetarily. To again quote from Arbitrator Edelman: "While I may not order the County to create additional promotional opportunities, I have the authority to make the Grievants whole monetarily, if I find a violation of Section 12-2. Thus the Circuit Court's determination that an employee who is promoted may not be demoted unless he/she is found culpable of misconduct or incompetence does not mean that the instant dispute is non-arbitrable, I conclude."

The bottom line is that seniority grievances can still be brought as before on any promotion that an employee believes he or she should have received. The promoted employee must be notified by the County and be given an opportunity to be heard before he/she can be removed from his/her position but regardless, the successful grievant will be made whole. Once again, your union has successfully fought to preserve your rights under the Collective Bargaining Agreement and this firm shall remain vigilant in protecting your rights.