In the Matter of Michelle Widrick, Appellant; Michael Carpinelli,, et al., Respondents.BriefN.Y.June 25, 2018TIIE LAW FIRM OF FRANK W. MILLER, PLLC Attorneys and Counselors at Law 6575 Kirkville Road East Syracuse, New York 13057 Telephone: (315)234-9900 Fax: (315)234-9908 fmiller@fwmillerlawfirm.coni Frank W. Miller Charles C. Spagnoli John P. Powers May 8, 2018 New York State Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: Widrick vs. Carpinelli, Lewis County APL-2018-00027 Rule § 500.11 Appeal To the New York State Court of Appeals: This letter is submitted in accordance with Rule § 500.11 in opposition to the appeal filed by Appellant Michelle Widrick from the Decision of the Appellate Division Fourth Department that reversed the Lewis County Supreme Court’s Decision. On behalf of Sheriff Michael Carpinelli of the Lewis County Sheriffs Department and Lewis County Attorney’s office, the Respondents named herein, we contend that the Decision and Order of the Appellate Division, Fourth Department was correctly decided and that the appeal in this matter should be dismissed. On behalf of the Respondents, we assert that the Appellate Division correctly decided this matter by ruling that the Collective Bargaining Agreement between the Appellant’s union and Lewis County limited the right to demand arbitration of a Court of Appeals May 8, 2018 grievance to the union itself. The union made no demand for arbitration and the Appellant ’s demand for arbitration had ho legal effect. BACKGROUND FACTS The Appellant Widrick was employed as a 911 dispatcher for Lewis County Sheriffs Department. Following a detailed investigation, in which it was determined that the Appellant Michelle Widrick had repeatedly lied and had given false information during a departmental investigation, the Sheriff notified Ms. Widrick that her employment was terminated. This notice was consistent with the terms of the Collective Bargaining Agreement which stated a provision wherein the right to terminate was by agreement, conferred directly upon the Sheriff without the need to first go through the statutory provisions of Civil Service Law § 75. (Pages R. 53,)1 In Article XXIII, entitled Discharge and Discipline, the right to discharge or otherwise discipline an employee was conferred directly, by contract upon the County. In this case, the County acted through its duly elected Sheriff, Michael Carpinelli to dismiss Appellant. When the notice was given to the Appellant Widrick, she then had the option to elect how she wished to proceed. Article XXIII conferred upon the employee the right to select the method of 1 The references are to the Record on Appeal which we are reliably informed has been transmitted to the Court. 2 Courtof-Appeals May 8, 2018 receiving due process. She could either choose to go through arbitration “in accordance with the terms of the Collective Bargaining Agreement” or she could opt for a statutory Civil Service Law § 75 hearing. Once that option was selected, the matter would then proceed according to either the statutory procedure or the grievance-arbitration procedure. The unmistakably clear language of the Collective Bargaining Agreement states for example, in Article XXIII § 2(a) in relevant part as follows: “Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the regular grievance procedure (including the arbitration step if necessary)” Further, Article XXIII § 2(b) also provides in relevant part: “Such employee must indicate in writing to the department head within five workdays 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 § 75.. What is unmistakably clear about this language, as the Appellate Division Fourth Department ruled, is that the reference here is to the grievance arbitration procedure which is found in Article IV of the Collective Bargaining Agreement (R. 38-39). The only mechanism which provides for grievance and/or arbitration procedures are found in Article IV. What is also unmistakably clear, as the 3 Court of Appeals May 8, 2018 Appellate Division Fourth Department ruled, was that the grievance arbitration procedure is “owned” by the civil service employee’s association, the exclusive agent for representation of the employees. For example, in Article IV § 5 entitled Arbitration, the contract unequivocally states the following: “Should the department head’s decision not be acceptable to CSEA, CSEA shall have the right within thirty days of the Decision, to proceed to binding arbitration as conducted by PERB, the Public Employment Relations Board. The cost of the proceeding shall be shared jointly by the County and CSEA.” Further, Article I of the Collective Bargaining Agreement (R. 34), provides that Lewis County recognizes exclusively the Lewis County Sheriffs Employee’s Association, of the Civil Service Employee’s Association, as the exclusive representative for collective negotiations with respect to “salary, wages, hours and all other terms and conditions of employment for all county employees....” (R.34). The concept of exclusive representation of the employees by the labor union, is entirely consistent with long standing law and practice in the public sector. As the Appellate Division Fourth Department recognized and as we cited in our main brief to the Appellate Division, the concept of exclusive representation provides the parties with consistency in the interpretation and application of specific contractual terms. It also provided the employer with the protection against multiple persons demanding satisfaction of grievances which are not processed or 4 Goui-t of-Appeals- May 8, 2018 filtered through the union grievance arbitration process. It has long been held that no individual employee has a right to file a demand for arbitration or otherwise file a claim against their employer, if it is not through the union itself. For example, this Court previously held in Board of Education v. Ambach. 70 N.Y.2d 501 (1987) cert, denied 485 U.S. 1034 (1988), that members of a Collective Bargaining Agreement or union had no rights independent of the collective bargaining agent. It has also been held that it is a matter of elementary logic that the exclusive agent must be involved in the grievance or the demand for arbitration, otherwise there would be little purpose in having a Collective Bargaining Agreement if every individual employee could compel management to arbitrate every grievance. See Calka v. Tobin Packing. Co.. 9 A.D.2d 820, 822 (3rd Dept. 1959). The cases cited by the Appellate Division Fourth Department in its decision in this case, confirm that this interpretation is the correct one. For example, in County of Westchester v. Mahoney. 56 N.Y.2d 756, 758 (1982), this Court similarly found that the Collective Bargaining Agreement provided for only the union to be able to petition for arbitration. Under the clear and unmistakable language of the grievance arbitration article in this Collective Bargaining Agreement, it is clear beyond a doubt that only the CSEA could petition for arbitration and that the individual, i.e., Appellant Widrick, had no authority to file 5 Gourt-of-Appeals May 8, 2018 a demand for arbitration. The arguments by the Appellant in this matter are simply an effort to confuse and obfuscate the clear and unmistakable language of the Collective Bargaining Agreement. There is simply no basis for the contention offered by Widrick that she has a right to demand arbitration when the contract unequivocally confers upon CSEA the right and the authority to demand arbitration. The Appellant Widrick also overlooks the numerous procedural and substantive errors and mistakes made by Widrick in attempting to demand arbitration. Virtually all of the steps necessary to properly demand arbitration were not done and those failures constitute a valid basis to dismiss her petition outright. While we recognize that the Appellate Division Fourth Department did not reach those issues, those bear pointing out here because they too constitute a valid basis to uphold the Fourth Department Decision. Briefly stated, those deficiencies are outlined below: • Appellant failed to comply with CPLR § 7503(c) which specifies that prior to an application to compel arbitration a party must serve a proper notice of intention to arbitrate. That notice of intention to arbitrate must specify the agreement pursuant to which the arbitration is sought, must specify the name and address of the party serving the notice and must state that unless the party 6 Court of-Appeals- May 8, 2018 served applies to stay arbitration within twenty days after service he shall thereafter be precluded from objecting. In this case, the Appellant Widrick merely served a letter via e-mail on November 29, 2017 claiming that she wished to grieve her termination. The letter was sent by her, not by CSEA. There was no involvement in or notice to CSEA. The notice did not comply with CPLR 7503 and was “served” improperly. • Instead of filing a proper demand for arbitration, pursuant to CPLR § 7503(c), the Appellant, through an attorney not connected with CSEA, filed a letter as private counsel for Appellant Widrick, requesting the “initiation” of arbitration before the American Arbitration Association, not the Public Employment Relations Board which had been denominated in the contract as the forum through which arbitration could properly be sought. This effort was wholly defective. It was not served in a manner required by statute and it did not refer to the proper forum. The failure to identify the proper arbitration forum constitutes a request for arbitration that is utterly void. That error, in and of itself, constitutes a valid basis to dismiss this petition. See Matter of City of Long Beach v. Long Beach Professional Firefighter’s Association Local 287, 136 A.D.3d 813, at 815 (2nd Dept. 2016). 7 Coiu-t-of-Appeals May 8, 2018 • Not receiving a satisfactory response, the Appellant Widrick again through her attorney sent another letter dated December 9, 2015 which also did not comply with CPLR § 7503(c) and was therefore void. (See R. 101). This correspondence, which failed to comply with CPLR § 7503(c), also repeated the request again for arbitration through the American Arbitration Association. The American Arbitration Association was a stranger to this contract. The parties had previously committed that their arbitration forum would be the Public Employment Relations Board arbitration service, not the American Arbitration Association. This constitutes a void demand for multiple reasons. • The Appellant Widrick also seeks to have the Court overlook the fact that the so-called “defective demand” was not served in compliance with CPLR § 7503(c). There, the initial letter was sent by e-mail, the follow-up letters were sent via facsimile. None of those letters were sent by the means specified in CPLR § 7503 which specifies that “the notice of intention to arbitrate must be served “in the same manner as a summons or by registered mail, return receipt requested”. In this case, none of those methods were utilized and the deficiencies committed by the Appellant in this regard alone stand as a proper 8 Court of Appeals May 8, 2018 basis to dismiss the proceeding. See New York Central Mutual Fire Insurance Co. v. Czumai. 9 A.D.3d 833 (4th Dept., 2004). • The Appellant lacks standing to file this demand for arbitration. As noted above, an individual is not conferred with authority under this contract to file a proper demand for arbitration. Article XXIII, the Discharge and Discipline article refers to “the grievance procedure”. “The grievance procedure” is identified as Article IV of the Collective Bargaining Agreement which unequivocally confers upon CSEA, only, (the exclusive agent), the authority to petition for arbitration through the Public Employment Relations Board. The demand is defective for ail of the above reasons. I. THE APPELLATE DIVISION CORRECTLY RULED THAT IT HAD JURISDICTION TO DETERMINE WHETHER AN AGREEMENT TO ARBITRATE EXISTED The Appellant Widrick argues at page 7 and 8 of her application that the issue of whether she had a right to arbitrate, should have been referred to the arbitrator as a matter of contract interpretation. However, this flies in the face of well settled law. For example, in the matter of County of Rockland v. Primiano Construction Co., 51 N.Y.2d 1. (1980), the Court ruled that the issue of whether or not the parties have a valid agreement to arbitrate is a proper issue for the Court to resolve and is not a procedural issue which may be determined by the arbitrator. 9 Court nf Appeals May 8, 2018 See also East Ramapo Central School District v. Svmanski. 90A.D.2d 821 (2nd Dept., 1982). Thus, the Appellate Division was correct when it examined the terms of the Collective Bargaining Agreement itself and found that the Collective Bargaining Agreement unequivocally referred the issue of arbitration to the Civil Service Employee’s Association as the exclusive agent for the representation of the employees. In fact, there is no explanation contained in Article XXIII of the CBA (discharge and discipline) that explains how the arbitration procedure would be carried out or which tribunal or form it would be arbitrated before. Instead, the contract by its very express terms refers the entire matter to “the grievance arbitration procedure” of Article IV. The only grievance arbitration procedure in the contract is found in Article IV. (R. 38-39) and is clear in its language that CSEA is the exclusive agent for demanding arbitration. The Appellate Division, Fourth Department was correct when it resolved this issue as a matter of law and it would be improper to refer this issue of whether a contract to arbitrate between the County, the Sheriff and Michelle Widrick ever existed. That issue was within the sole province of the Court. 10 -Caurtof-Appeals- May 8, 2018 II. APPELLANT DOES NOT HAVE A CONTRACTUAL RIGHT TO ARBITRATE THE GRIEVANCE. While the contract at Article XXIII (R. 53) confers upon the employee the right to demand the type of procedure which she desires for her firing; it does,not confer the right to control the selected procedure. The procedures are either in the contract (Article IV) or Civil Service Law § 75. The Appellant must choose one or the other but cannot dictate the terms of those procedures. The Appellant must still comply with the provisions of the Collective Bargaining Agreement or the provisions of Civil Service Law § 75. In reality, the Appellant cannot demand a special procedure which she herself would create. For example, the Appellant Widrick demanded arbitration before the American Arbitration Association. In that circumstance, there is no provision for the employment of an outside agency to administer the arbitration process. Furthermore, the contract, in the contract, Article IV. (R, 38-39 provides in relevant part that the expenses of the proceeding will be shared jointly by the County and CSEA. In the circumstances where CSEA did not participate, how can the County force the CSEA to pay a share of the arbitration cost of the procedure? Furthermore, absent participation of CSEA, does that mean the entire cost, or financial burden of the procedure would then be the responsibility of the employer? The contract answers these issues because the contract never contemplated that an individual could demand arbitration in their 11 -Coui'Lo£Appeals- May 8, 2018 own right. Clearly if the employee seeks the arbitration process, Article IV of the CBA must govern. The effort by the Appellant to claim that she is entitled to seek arbitration in her own right, involves little more than a creative, yet distorted, interpretation of the language of the Collective Bargaining Agreement. No effort to obfuscate or confuse the language of the Collective Bargaining Agreement can create a right that does not exist under the CBA. III. THERE IS SIMPLY NO ISSUE OF AN ASSIGNMENT OF A RIGHT TO DEMAND ARBITRATION. At pages 13-15 of Appellant’s letter memorandum, the Appellant argues that there was “an assignment” of “grievance ownership” such that Appellant could in her own right demand arbitration. This argument undercuts the Appellant’s main argument. This argument, we believe, concedes the idea that the CSEA “owned” the right to demand arbitration. Absent that, no need would exist for such an assignment to occur. Furthermore, there is no evidence that any such assignment occurred. As we presented in our reply brief filed with the Appellate Division Fourth Department this argument about a purported assignment of rights is meritless. There is simply no evidence to substantiate the claim of an “assignment”. Further, as cited in our reply brief (page 15) a labor contract is by definition a contract for personal services. As such, the law is well settled that a contract for personal services may not be assigned absent the consent of the 12 Coui’tofAppeals May 8, 2018 principal. See generally Wien and Malkin, LLP v. Helmsley-Spear, Inc., 6 N.Y.3d 471 (2006) Corbin Contracts § 865; 3 Farnsworth Contracts § 11.4, 11.10 (3rd Edition) there is certainly no evidence and indeed not even an allegation that the County ever consented to such an assignment of this grievance to the Appellant. Whatever claim the Appellant is making, is clearly meritless as there is no proof that the County consented to such an assignment, and therefore, no such right of assignment exists. Finally, we reiterate the point that this argument about an assignment, effectively concedes that the CSEA owned the right to demand arbitration in any case. There would be no need to discuss a possible assignment, if the Appellant could in her own right demand arbitration procedure. Here, however, this argument is utterly meritless and must be rejected. CONCLUSION We contend that the arguments advanced by the Appellant for reversal of the Fourth Department Appellate Division Decision are utterly meritless and must be rejected. The Appellate Division Fourth Department was correct in its assessment that the contract unequivocally reserved the right to demand arbitration to the union. The absence of the union involvement establishes that the Appellant has no standing to file a demand for arbitration and this petition must be dismissed. (See 13 -Coiut-olAppeals- May 8, 2018 Clark v. County of Cayuga, 212A.D.2d 963(4lh Dept., 1995); Matter of Reese v. Mohawk Valiev Community College. 28 A.D.3dk 1240 (4lh Dept., 2006). We urge the Court to reject this application and to affirm the Decision of the Appellate Division Fourth Department. Respectfully submitted, By: Frank W. Miller 1 The Law Firm of Frank W. Miller, PLLC 6575 Kirkville Road East Syracuse, NY 13057 Telephone: (15) 234-9900 Fax: (315) 234-9900 fiiiiller@fwniillerlavvfirni.com Cc: Stephen Ciotoli, Esq. O’Hara, O’Connell & Ciotoli 14 COURT OF APPEALS OF THE STATE OF NEW YORK In the Matter of the Application of Michelle Widrick, Petitioner, AFFIDAVIT OF SERVICE Index No: CA2016-000032 RJI No: 524 3016-0026 Docket No: vs. Sheriff Michael Carpinelli, the Lewis County Sheriffs Department and Lewis County Attorney’s Office, Respondents. STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.: I, Kathleen A. O’Neill, being duly sworn, depose and say that I am not a party to this action, am over 18 years of age and reside in Parish, New York. That on May 8, 2018,1served the within Letter Brief by mailing a true copy to the petitioner’s attorney, at the last known address set forth below: Stephen Ciotoli, Esq. O’Hara, O’Connell & Ciotoli 7207 East Genesee Street Fayetteville, New York 13066 I deposited true copies of the same enclosed in a postage-paid, properly addressed wrapper, by regular U.S. Mail in an official United States Postal Service depository under the exclusive care and custody of the United States Postal Service!within theState of New York. Kathleen A. O’Neill Sworn to before me /"“"X Notary Publicf— PAl'Rir-l;’ ''•"'"INNotary Public, it..,. v.*0'«al. in Onondaga Co. io. OlGubc J91|Commission Expires Octdief 2&.-£(Kÿ