In the Matter of Michelle Widrick, Appellant; Michael Carpinelli,, et al., Respondents.BriefN.Y.June 25, 2018Stephen Ciotoli, Esq. Office: (315) 451-3810; Fax: (315) 45'-5585 Email: sdc@oharaIaw.comSB O’HARA, O’CONNELL & CIOTOLIATTORNEYS AND COUNSELORS AT LAW7207 EAST GENESEE STREET • FAYETTEVILLE, NEW YORK 13066-1262 April 20, 2018 New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Widrick v. Carpinelli APL-2018-00027 Rule § 500.11 Appeal Our File No. 13336.0001 To the New York State Court of Appeals: This letter is respectfully submitted in accordance with rule § 500.11 in support of the appeal by Petitioner-Appellee, Michelle Widrick (hereafter “Petitioner”), from the decision from the Appellate Division, Fourth Department (hereafter “Appellate Court”) that reversed the Lewis County Supreme Court’s (hereafter “trial court”) decision to grant Petitioner’s CPLR § 7503 petition to compel arbitration against her employer, the Lewis County Sheriffs Department, and identified individual Respondents-Appellants Sheriff Michael Carpinelli and the Lewis County Attorney’s Office, (herein collectively referred to as “Respondents”). The trial court’s order and judgment, granting the petition on January 10, 2017 (R. 10-21) was reversed by the {W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ Appellate Division based solely on the claim that the terms of the Collective Bargaining Agreement granted only Petitioner’s union the right to demand arbitration against Respondents. This completely contradicts the trial court’s own diligent review and reasonable interpretation of the CBA. (R. 15-18). Upon examination of the expressed terms within the CBA, this Court should find Petitioner had a well-established and mutually agreed upon right to demand that the Respondents submit to arbitration in connection to their decision to terminate her employment. FACTS AND PROCEDURE: Petitioner had been employed as a 911 Dispatcher by the Lewis County Sheriffs Department for 17 years. (R. 26). On November 19, 2015, the Sheriff sent a letter to Petitioner, dated November 18, 2015, summarily terminating her, effective immediately, from employment with the Lewis County Sheriffs Department. (R. 28 and 88). The document stated that Petitioner was to be terminated for reasons that were to be provided within five (5) work days from the “termination action.” Id. Petitioner subsequently received a “ Notice of Statement of Charges Pursuant to Civil Service Law Section 75 and the CBA”, dated November 25, 2015, which provided a 2{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018__ statement of the specific charges for which Petitioner was being terminated. (R. 29 and 89-92). The alleged “misconduct” surrounded an incident that occurred on Monday, August 17, 2015. (R. 26 and 31-54). As a dispatcher, Petitioner was a member of the Local 825 CSEA Bargaining Unit (hereafter the “Union”). Under the Collective Bargaining Agreement (hereafter the “CBA”), the following terms governed the process through which the County and Sheriff may attempt to discharge a Union employee and how an employee can elect to challenge any such determination: ARTICLE XXIII - DISCHARGE & DISCIPLINE Section 1. Discharge, Discipline or Other Penalty: The County shall have the right to discharge or to otherwise discipline an employee for just cause A. Section 2. Procedures: Within five (5) work days after the discipline of an employee covered by this agreement (or sooner if practicable), the County will provide the disciplined employee, the Departments Union Steward, and the Union President, with a written statement of the reason for which the discipline was imposed. Any disciplinary action or measure imposed upon an employee may be processed as a grievance A. 3{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ through the regular grievance procedure (including the arbitration step if necessary). If such employee is covered by Section 75 of the Civil Service Law, it may be processed either by the grievance and arbitration procedure, or by a hearing as provided by said Section of Civil Service law as the employee may elect. The election of either procedure precludes the use of the other. Such employee must indicate in writing to the Department Head within five (5) work days of notification that disciplinary action is being imposed, that he/she elects either to exercise his/her rights under the grievance, and arbitration procedure or the rights provided by Section 75. Failure to exercise such option as provided will automatically foreclose use of the grievance and arbitration procedure, {emphasis added) (R. 53). B. Conversely, Article IV of the CBA covers grievances and arbitration generally. (R. 38-39). The employee has the right to be represented at all stages of the grievance process,“if the employee so chooses”. (R. 38 — Article IV Section 1). Article IV also provides that an employee’s right to present grievances “ shall be liberally construed’ for allowing employees to present and help resolve grievances “free from coercion, interference, restraint, discrimination, or reprisal.” (Id.). 4{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ On the advice of her private legal counsel, Petitioner sent a written statement dated November 29, 2016, to Attorney McNichol, indicating her election to grieve the Sheriffs determination to terminate her employment. This response was made within five work days of being notified that Petitioner was facing disciplinary action. (R. 29, 93). In addition, on November 29, 2015, Petitioner was copied on a correspondence that her attorneys sent to Attorney McNichol in which they indicated that they were in receipt of those documents and requested that Attorney McNichol contact the American Arbitration Association to initiate the process for appointing an arbitrator. (R. 29, 100). On December 9, 2015, Petitioner’s attorneys sent Attorney McNichol a follow¬ up letter, again requesting that she arrange for the grievance procedure to go forward to arbitration. (R. 29, 101). From a letter by Attorney McNichol to Petitioner’s attorneys, dated December 10, 2015, Petitioner was made aware that the County decided that it considered the matter closed and had no intention to go forward with the arbitration, thereby making Court intervention and the Article 75 Petition necessary. (R. 29, 102). 5{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ On November 28, 2016, Honorable Charles C. Merrell issued a final decision which found that Petitioner, under the terms of the CBA, had the right and standing to individually seek arbitration and compel Respondents to submit to it, and that she had properly complied with all the conditions and requirements of the agreement in connection to initiating arbitration against the Respondents. (R. 13-21). Respondents appealed to the Appellate Division Fourth Department and raised several argument points. (R. 4-5, 11). Upon considering the submitted briefs and oral arguments, the Appellate Court reversed the trial court’s decision based solely on the issue of whether Petitioner had standing to demand arbitration pursuant to the expressed terms of the CBA, for which it found that she did not. Specifically, the Appellate Court claimed that“only the union had the right to demand arbitration of a grievance arising from a dispute involving her employment See Exhibit “A”. This was a question of fact that the Appellate Division determined based on expressly and impliedly found new facts, in which it entered a final judgment pursuant thereto. No other legal or factual findings were cited by the Appellate Court in support of this determination. 6{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ ARGUMENTS IN SUPPORT OF REVERSING APPELLATE COURT’S DECISION: First, it is contested whether Petitioner had the right to demand arbitration under the CBA. If this is an issue that exclusively falls within the jurisdiction of an arbitrator to decide, then it was an improper exercise of jurisdiction by the Appellate Court to decide on this specific matter. Once a valid agreement providing for arbitration has been entered into, any controversy arising regarding the contract which is within the scope of arbitrability must be decided by an arbitrator. Matter of Exercycle Corp. Maratta, 9 NY2d 329, 334 (1961). This can include questions and disputes concerning the construction, application, or interpretation of the agreement itself. Matter of Long Is. Lbr. Co. Martin, 15 NY2d 380, 386 (1965); see also, Franklin Cent. Sch. v Franklin Teachers Assn., 51 NY2d 348, 356 (1980). As this Court has held, a court’s function in such cases is limited to determining if a dispute concerning the interpretation of the contract, whether tenable or not, does in fact exist. Bd. of Educ. v Chautauqua Cent. Sch. Teachers Assoc., 41 AD2d 47, 50 (4th Dept. 1973). 7{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20. 2018_ As stated under Article IV of the CBA, a “Grievance” that can be subject to arbitration includes any claimed “ misinterpretation or inequitable application of the articles or sections of this contract.” (R. 38). The broad language of this clause expressly indicates that a legitimate dispute regarding the terms, scope, and rights granted under the CBA is arbitrable. Whether Petition has the right to demand arbitration under any portion of the CBA therefore falls within the scope of issues that are to be submitted before an arbitrator to decide. If the Appellate Court did have legal jurisdiction to decide whether Petitioner has the right compel arbitration under the CBA, then its conclusion that she does not was erroneous in two respects. First, the CBA expressly gives Petitioner the individual right to elect to file a grievance and thereafter, pursue the arbitration of an unfavorable decision by her employer without representation exclusively by the Union on her behalf. The controlling provision of the CBA at issue here is Article XXIII-Discharge & Discipline. (R. 53). As the trial court acknowledged, the CBA, in relevant part, is explicit and unambiguous in its terms that covered employees are given the right of grieving against disciplinary actions, including termination, through either arbitration or with Section 75 charges. (R. 17-18). As a covered employee, Petitioner has the 8{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ right to challenge Appellant’s disciplinary action by submitting it to arbitration. Second, the CSEA never raised any issue or objection to the Petitioner’s right to grieve and pursue arbitration in this matter and has never stated that it “owns” the grievance or the right to demand arbitration, exclusive of Petitioner or any covered bargaining member. A. Petitioner has the Contractual Right to Arbitrate the Grievance First, where a CBA allows an employee, who is the subject of a disciplinary proceeding, the option and right to select his or her own attorney or representative, file a grievance, and elect to demand arbitration, the employee is considered to have standing to enforce such rights. Diaz v. Pilgrim State Psychiatric Center, 62 NY2d 693 (1984). Here, the CBA expressly permits individual members/employees to select their own legal representative, and personally decide whether to pursue the grievance and arbitration in the case of termination. (R. 53). Based on the expressed rights and decision-making authority granted to employees under the CBA, Petitioner had the authority to demand and compel Respondents to submit to arbitration of her grievance against their decision to terminate her public employment. 9{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ Upon examination, Article IV of the CBA covers grievances and arbitration generally. (R. 38-39). As stated under Section 1 of this Article, an employee has the right to be represented at all stages of the grievance process, “if the employee so chooses This indicates that the Union is not the exclusive agent that can handle standard grievances and has never taken that position in this action. Logically, this indicates that employees may personally elect to either be represented by the Union, themselves individually, or their own retained outside legal counsel, as they may so choose. Furthermore, this section emphasizes that the grievance and arbitration procedures are intended to “ establish a more harmonious and cooperative relationship between the County Government and its Pubic Employees” and that “ the provisions of this resolution shall be liberally construed for the accomplishment of this purpose.” (Emphasis added). (R. 38). This ultimately endorses and adopts New York State’s public policy that promotes and favors the voluntary resolution of public employee contractual disputes, which applies equally to procedural and substantive matters arising out of the CBA. West Irondequoit Central School District v. West Irondequoit Teachers Association, 55 AD2d 1037, 1038 (4th Dept. 1977). 10{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ Article XXIII of the CBA, which governs Discharge and Discipline, is the controlling provision in this matter. This is a separate and distinct portion of the CBA that contains terms that are quite different from the standard grievance and arbitration procedures under Article IV and appear inconsistent in certain respects. Article XXIII is intended to cover all manners of employee discipline and discharges that may possibly arise within the bargaining unit. In the case of discipline, the individual employee/member is expressly granted the right to pursue arbitration against the employer. Specifically, Section 2 provides that any disciplinary action, including termination, can be contested by means of a grievance with arbitration or by a Section 75 Civil Service Law hearing, which is a decision that is left to the employee to make. (R. 53) (emphasis added). Furthermore, the employee must indicate “ that he/she elects either to exercise his/her rights under the grievance, and arbitration procedure or the rights provided by Section 75.” (R. 53). Article XXIII Section 2(B) thus gives an employee covered by Civil Service Law Section 75 the right to elect “the grievance and arbitration procedure”, referred to in the previous Subsection 2(A) as the “regular grievance procedure.” The “regular” grievance procedure is presumably the one found under Article IV, although there is no 11{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20. 2018__ specific reference to Article IV, and there is no separate “grievance and arbitration procedure” defined in Article XXIII. There is also no language in the CBA, particularly in Article XXIII, expressly or implicitly permitting (or prohibiting) direct suit by the individual employee in the case of a refusal to arbitrate a grievance based on an alleged wrongful termination. Matter of Board of Education Commack Union Free School District v. Ambach, 70 NY2d 501(1987). In the case of termination, it appears in large part that the procedure for grievance resolution found in Article IV Section 4 would, as a practical matter, be bypassed. Article XXIII Section 2 by its terms deals with discipline and does not clearly define a process to grieve a termination, when read in conjunction with Article IV. Giving due deference to the liberal construction of the CBA specifically agreed to by the parties, in the case of termination, Petitioner in this case has the right to seek arbitration and standing to compel the same in court. Petitioner complied with all requirements for initiating the arbitration process prescribed by the CBA. Thus, Appellants should be compelled to arbitrate the grievance challenging her termination. Furthermore, in the cases relied upon by the Appellate Division (County of Westchester v Mahoney, 56 NY2d 756 [1982]; Matter of Gonzalez v County of Orange 12{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ Dept, of Social Servs., 250 AD2d 849 [2d Dept 1998]; EastRamapo Cent. Sch. Dist. v Symanski, 90 AD2d 821 [2d Dept 1982), there is no indication that the collective bargaining agreements at issue gave the employees the options which Petitioner had in this case. Petitioner does not dispute the notion that the terms of a CBA can grant exclusive ownership of an arbitration procedure to a union. However, that is simply not the case here. The CBA at issue expressly grants individual employees numerous options and rights in regard to legal representation and procedures through which they can contest against adverse employment actions by Respondents. Petitioner chose to exercise one of these rights in response to her termination, which Respondents are now seeking to unjustifiably deny her. B. Nothing Prohibits the Union from Assigning any Grievance Ownership and the Union Never Objected to Petitioner’s Demand Arbitration There is no provision in the CBA that prohibits the union from assigning that right to a covered member who is a beneficiary of the agreement. Even if it is found that the Union owns the right to arbitration on behalf of its employee members, there was never any expressed objection from the Union against Petitioner’s decision to demand arbitration on her own via her private counsel. It is undisputed that the Union 13{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ was privy to the developments and issues involved in Petitioner’s termination and grievance against the Respondents. The Union was always aware that Petitioner retained private counsel to represent her, and that she desired to submit her grievance to arbitration following Respondents’ decision to terminate her employment. If the Union was indeed the only entity entitled to demand arbitration under the CBA, it would or should have expressly indicated to either Petitioner or her counsel that she lacked the standing to make such a demand on her own. The CBA is a “collective” agreement for the benefit of the Union members. If there is a reason a member cannot personally arbitrate a grievance, the Union would have standing to raise such an issue. However, Respondents should not be able to escape responsibility to its employees by challenging that assignment or trying to assert an argument that the Union has never asserted. This absence of any objections from Union despite its knowledge and awareness of this situation amounts to full consent by it for Petitioner to pursue the course that she did in demanding that Respondents submit her grievances to arbitration. Petitioner clearly had standing to proceed with the grievance and arbitration, through her own counsel, upon her termination of employment by Appellants. 14{W0310985.1} New York State Court of Appeals Matter of Widrick v. Carpinelli APL-2018-00027 April 20, 2018_ Based on the forgoing, Petitioner respectfully requests that this Court reverse the Appellate Court’s decision and uphold the trial court’s order to compel Respondents to submit to Petitioner’s demand arbitration in connection to the termination of her public employment. If you have any further questions or require additional documents and information in order to resolve this matter, please feel free to contact my office. Thank you for your time and attention to this important matter. Very truly yours, O'HARA, O'CONNELL & CIOTOLI /?) By: Stephen Ciotoli SDC/emm Enclosures 15{W0310985.1} STATE OF NEW YORK SUPREME COURT COUNTY OF LEWIS MICHELLE WIDRICK, AFFIDAVIT OF SERVICE BY MAILPetitioner-Appellee, -vs- APL-2018-00027 SHERIFF MICHAEL CARPINELLI, LEWIS COUNTY SHERIFF’S DEPARTMENT, and LEWIS COUNTY ATTORNEY’S OFFICE, Rule § 500.11 Appeal Respondents-Appellants. I, Eileen M. Malay, being duly sworn, depose and say that I am not a party of this action, that I am over 18 years of age and reside in Syracuse, New York; and that, on the 20th day of April, 2018, I served one (1) copy of the Letter Brief on behalf of the Petitioner-Appellee in the above-referenced matter on the following attorney, at his last known address set forth below: Frank W. Miller, Esq. The Law Firm of Frank W. Miller 6575 Kirkville Road East Syracuse, New York 13057-9809 by delivering a true copy of the same enclosed in a postage paid container at an official office under the exclusive care and custody of the United States Postal Service within Onondaga County in the State of New York. VEileen M. Malay Sworn to before me this 20th day of April, 201K- k RYAN G FILESNotary Public, State of New York f I No.02FI6365842 W Qualified in Onondaga County Commission ExpÿesOÿtoberHgQAj, > Ndtary Public > {W0311172.1}