IN RE: the Application of Wayne Spence (2024)

Upon the reading and consideration of NYSCEF document nos. 1 through 40, it is:

ORDERED that the petition is denied; and it is further

ORDERED AND ADJUDICATED that the proceeding is dismissed.

This is a proceeding brought pursuant to Civil Practice Law and Rules (CPLR) §§ 7511 and 7514 by Wayne Spence, as the President of The New York State Public Employees Federation, AFL-CIO (Petitioner Spence), and Daphne Beard (Petitioner Beard) (motion sequence 001) to vacate a final and binding arbitration decision and award issued November 9, 2022 (Award), to reinstate Petitioner Beard with back pay and benefits and for other incidental relief described herein. The Award ruled that Petitioner Beard was guilty of several charges lodged against her, that the penalty of termination from her employment as a State University of New York Stony Brook Hospital (SBUH) chaplain was appropriate and for just cause and that SBUH had just cause to suspend her without pay. Respondents oppose the relief requested, have answered the petition and have submitted the administrative record. Respondents' answer also alleged that the only proper parties to this proceeding are the New York State Public Employees Federation, AFL-CIO (Union) and the State University of New York (SUNY) and, as such, Petitioner Spence, as Union president, Petitioner Beard, and the remaining respondents should be dismissed from the proceeding.

Background

Petitioner Beard had been employed as a full-time SBUH chaplain since October, 2020. She was assigned to the palliative care unit. She testified at the arbitration that she provided, among other things, emotional and spiritual support to patients and their families, as well as to staff members. Her services also included bereavement support to patients' family members during the Covid-19 pandemic. As such, her work included activities which could potentially expose others to the disease.

Beginning on August 24, 2021 SBUH notified specified employees, including Petitioner Beard, that they were required to receive the first dose of the Covid 19 vaccination by September 27, 2021. This notice was in compliance with 10 NYCRR § 2.61 (Section 2.61 or State Mandate) which had been promulgated earlier that month by the New York State Department of Health (DOH) as an emergency rule. Section 2.61 directed hospitals and other healthcare "covered entities" to "continuously require" their employees to be fully vaccinated against Covid-19. The State Mandate applied to "all persons employed . . . by a covered entity . . . including but not limited to employees . . . who engage in activities such that if they were infected with Covid-19 . . . could potentially expose other covered personnel, patients or residents to the disease." In other words, it was not limited to those employees who were performing patient care. The State Mandate set September 27, 2021 as the deadline for these employees to receive the first dose.

Petitioner Beard did not vaccinate, but, rather, applied for a religious exemption from the vaccination requirement. She was notified that her application was denied by letter dated October 5, 2021. Having remained unvaccinated despite the exemption denial, Petitioner Beard received a notice of discipline, statement of charges and notice of suspension without pay dated March 28, 2022. A grievance was filed on her behalf on April 4, 2022 and an arbitration hearing on her grievance was held on August 31, 2022. As noted above, the Award dated November 9, 2022 upheld most of the charges, as well as the termination of Petitioner Beard's employment.

This Proceeding

The petition was filed on February 7, 2023. It seeks vacatur of the Award, Petitioner Beard's reinstatement, back pay, restoration of all benefits, correction of her employment record, as well as costs, fees, interest, and disbursements attendant to this proceeding. It does not challenge the denial of Petitioner Beard's application for a religious exemption. Rather, it asserts that the sole basis for the Award was an allegedly unlawful and irrational State Mandate which violated the public policy of the State of New York. More particularly, Petitioners rely on the Onondaga County Supreme Court order in Medical Professionals for Informed Consent v. Bassett, 78 Misc 3d 482 [Supreme Ct Onondaga County, 2023], app dismissed 220 AD3d 1157 [4th Dept 2023] which nullified the State Mandate and declared that that was beyond the scope of the DOH's authority. Petitioners further argue in their reply that the DOH's October 4, 2023 repeal of Section 2.61, some nine months subsequent to the issuance of the Award, eliminated the basis for Petitioner Beard's termination and compels her reinstatement.¹

Respondents counter by asserting that Petitioners have not met the high bar for vacating an arbitration award and that the Award was rational and in accordance with public policy because the arbitrator applied the law in effect at the time it was issued (We the Patriots USA, Inc. v Hochul, 17 F 4th 266, 290 [2d Cir 2021], cert. denied sub nom., Dr. A. v Hochul, 142 S. Ct. 2569 [2022]; Andre-Rodney v Hochul, 618 F Supp 3d 72, 83-84 [NDNY 2022]).

Applicable Law and Conclusions

It is well settled that judicial review of arbitration awards is extremely limited (Wien & Malkin, LLP v. Helmsley-Spear, Inc., 6 NY3d 471 [2006], citing United Paperworkers Intern. Union, AFL-CIO v Misco, Inc., 484 US 29 [1987]). "Indeed, we have stated time and again that an arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice" (id., at 479-480, citing Matter of Sprinzen, 46 NY2d 623, 629 [1979]. "A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]).

Notwithstanding, "[p]ursuant to CPLR 7511 (b) (1) (iii), a court may vacate an arbitrator's award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Long Beach Pro. Firefighters Ass'n v. City of Long Beach, 214 AD3d 735, 736—37 [2d Dept 2023] [internal quotations and citations omitted]). "Additionally, an award may be vacated where it exhibits a manifest disregard of law. The burden is on the movant to establish grounds for vacatur by clear and convincing evidence" (id.).

Here, the Award was consistent with both public policy and applicable law at the time it was issued (see, e.g., We the Patriots USA, Inc. v Hochul). Moreover, neither the Bassett decision nor the eventual repeal of Section 2.61 renders the Award invalid so as to require its vacatur (Salamoon v Richmond University Med Ctr, Index No. 151073/2023, 2024 WL 1819048 [Sup Ct, Richmond County April 11, 2024]["Even the eventual repeal of the Mandate in 2023 does not change the Court's analysis that it was valid at the time relevant to this case"]; Dennison v Bon Secours Charity Health Sys. Med Group, P.C., 2023 WL 3467143, 8 n.5 [SDNY 2023] ["As a matter of public policy, employers should not be required to accurately predict the outcome of litigation in order to avoid liability for discrimination on the one hand, or [take on] liability for violating state law on the other"] [internal quotations omitted]; see Hollinshead v NYC Health and Hosps. Corp., 81 Misc 3d 763[Sup Ct, Kings County 2023]; Haczynska v Mt Sinai Health System, Inc., 2024 WL 3178639, 15 n14 [EDNY June 26, 2024]; Jackson v New York State Office of Mental Health, 2024 WL 1908533, 9, n5, [EDNY May 1, 2024]; Mace v Crouse Health Hosp, Inc., 2023 WL 5049465 [NDNY Aug. 8, 2023]; Algarin v NYC Health and Hosp. Corp., 678 F Supp 3d 497 [NDNY 2023]).

Although supreme courts in Erie and Onondaga counties have applied Bassett as a basis for vacating arbitration awards which had upheld the terminations of State employees who refused Covid-19 vaccinations, those awards were issued after the Bassett decision was rendered, not before, as is the case here (see Cooper v Roswell Park Comprehensive Cancer Ctr., 81 Misc 3d 324 [Sup Ct, Erie County, 2023]; Spence (on behalf of Laframboise) v State University of New York, Index No. 004245/2023 [Sup Ct, Onondaga County, August 22, 2023]).

Accordingly, since the instant Award was in accordance with law and public policy in place at the time it was issued, there is no basis for it to be vacated. The petition is denied, and the proceeding is dismissed.

The parties' remaining contentions, including the Respondents' allegations that all parties other than the Union and SUNY should be dismissed, are unnecessary to this determination.

The foregoing constitutes the decision, order and judgment of the Court.

DATE: July 8, 2024

Riverhead, NY

HON. MAUREEN T. LICCIONE, J.S.C.

FOOTNOTES

1.   Counsel stipulated to a stay of this proceeding pending the appeal of Bassett to the Appellate Division, Fourth Department. That appeal was dismissed due to the repeal of Section 2.61.

Maureen T. Liccione, J.