IN RE: the Application of Civil Service Employees Association (2023)

Petitioners Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801 and Jesse Burby (collectively "CSEA" or "Petitioners") bring this petition pursuant to CPLR 7510 to confirm the Opinion and Award of an arbitrator issued September 6, 2022. The petition is opposed in a Verified Answer filed by respondent Albany County ("Respondent" or the "County").

The proceeding has its roots in an earlier petition concerning the same subject matter, addressed in my Decision & Order of April 11, 2022 (the "April 11 D&O"), a brief summary of which is necessary before I turn to the matter at hand.

On January 6, 2020, Burby was working for the County Department of Public Works when he shot another employee in the arm with a pneumatic nail gun, and then placed the gun on the co-worker's kneecap before he was pushed away (id.). Burby was fired, a penalty he challenged in an arbitration proceeding. In an Opinion & Award dated August 23, 2021, the arbitrator sustained a charge against Burby for Reckless Assault of a Fellow Employee. He declined, however, to adopt the County's proposed sanction of termination, and instead imposed a two-year suspension without pay, followed by a one-year probationary period upon his return (see April 11 D&O at 1-2).

The County filed a petition to vacate the award, on the ground that it violated the public policy against workplace violence. In my April 11 D&O, I found that while "the public policy against 'workplace violence' proffered by petitioner is too broad and vague to provide a basis for overturning the arbitration award, . . . there is a clear public policy in New York State against returning to the workforce an individual who poses a significant threat of serious injury to his co-workers" (id. at 12). I held that the arbitrator's determination upholding the assault charge against Burby, in light of the "extraordinary gravity" of his acts, "raised a sufficient inference" that he could pose such a danger if reinstated (id. at 13). The findings of the arbitrator, however, provided no ground for determining whether this was the case. Specifically, I noted that the August 23 Opinion and Award "never really decided the central question of whether [Burby's] acts were intentiona1," nor did it provide "any insight into how Burby came to fire a nail into his co-worker's arm, and then move to the victim's leg for a second shot" (id. at 13). Moreover, there were no findings in the Award as to whether Burby's return would pose a future threat to his co-workers, or whether he had any propensity for future violence — including whether he accepted responsibility or understood whether his actions were wrong (id. at 13-14). Therefore, I granted the petition to the extent of vacating the award, and remanded to the arbitrator for further proceedings and findings.

On remand, and following a hearing, the arbitrator issued the September 6, 2022 Opinion and Award at issue in this proceeding.

Although no additional testimony was taken before the Opinion and Award was issued (Pet, Ex A at 2), the arbitrator made a number of additional, specific findings about the incident. In particular, he found that: (1) there had been "horseplay" before the shooting, the parties involved were friendly, and Burby had pulled the trigger "believing [the nail gun] to be unloaded"; and (2) while Burby's actions were "careless and thoughtless," this was an "isolated incident" and there is "nothing in Burby's record to indicate that he was prone to such violence" (id. at 4). In addition, the arbitrator noted that during his suspension, Burby underwent a psychological evaluation, which found as follows:

"While it is the professional opinion of this psychologist that Jesse is responsible for his behavior, it is also the professional opinion of this psychologist that Jesse does not appear to pose any immediate danger to himself, or others. It appears more likely than not that Jesse's discharging of the nail gun was impulsive and foolish behavior, but there was no intent on Jesse's part to actually injure anyone, and he will not engage in similar irresponsible behavior, again.

My review of available records, current clinical review, [and] formal personality assessment, all suggest that on a day-to-day basis, Jesse is capable of controlling himself, and engaging in behavior that is both legal, and socially acceptable. There is certainly nothing that I have learned through the course [of] my psychological evaluation of Jesse that would cause this psychologist to be worried about Jesse causing me, or my loved ones, some type of significant physical injury, due to his reckless behavior" (id. at 5).

On the basis of the foregoing, the arbitrator expressed the belief that Burby did not pose, nor would he pose in the future, a threat to his co-workers (id. at 5). Further, he stated that he held the same view originally, as he would not have permitted Burby back into the worplace if he had "any inkling that his irresponsible behavior could be chronic, or a danger to his co-workers" (id.).

As a result, the arbitrator reinstated his original award, with the added proviso that, since Burby's two-year suspension ended January 2002, but he had not been returned to work at that time, he was entitled to back pay from January 2002 onward (id. at 6).

The present petition followed. In Respondent's Verified Answer, the County contends that the arbitrator "failed to properly evaluate the danger that the employee's return would pose to his co-workers" (Answer ¶ 8). Specifically, it asserts that in the September 6 Opinion and Award, "the Arbitrator failed to properly evaluate the testimony of the Commissioner of the Albany County Department of Public Works as to the danger the employee's return would pose to co-workers," and that the Commissioner "was in the best position to offer testimony as to the danger to co-workers posed by the employee returning to work" (id.). Instead, respondent argues, the arbitrator "relied on the hearsay report of a third party who lacked knowledge of the assault, the nature of work performed by the Department of Public Works and of the employee," and was based on information that "came from the assailant himself"¹ (id. ¶ 9).

In a reply memorandum of law, CSEA argues that the arbitrator addressed the safety concerns raised in my prior opinion, and there is no basis on which the Court may question his factual findings or legal conclusions (see Brief in Reply and in Further Support of Petitioners' Motion to Confirm 4).

Discussion

On a petition to confirm an arbitrator's award, and I cannot "substitute [my] judgment for that of the arbitrator simply because [I believe my] 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]). Further, I am bound by the arbitrator's factual findings (see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1989]). While I may vacate an award that violates public policy, I cannot do so " based on [my] disagreement with the reasoning or outcome, even if the arbitrator made errors of law or fact" (Matter of Livermore—Johnson [New York State Dept. of Corr. & Community Supervision], 155 AD3d 1391, 1392 [3d Dept 2017]).

As noted, my earlier D&O vacated the original arbitration award on the ground that the nature of the offense was such that it raised an inference that Mr. Burby could pose a danger to his co-workers in the future, and the award contained no findings about the risk to other employees of returning Mr. Burby to the workplace, or about any of the underlying factors which would allow the Court to evaluate such risk (i.e., intent, whether there was a history of other misconduct, mental state, remorse, etc.). The arbitrator has now created a detailed record of specific findings about the offense at issue (and Burby's lack of intention to cause harm) and Burby's psychological state, and in particular has found that there was no evidence that Burby's return created a future danger in the workplace. In short, the arbitrator has filled in the blank spaces noted in the April 11 D&O.² Given the specific factual findings by which I am bound, I see no basis to overturn the arbitrator's determination.

The Respondent's opposition is in direct contradiction to the principles outlined above. The County does not dispute that the facts, as found by the arbitrator, place this case outside the public policy regarding workplace violence set forth in my prior opinion. Rather, it would have me disregard the arbitrator's determination, by adopting the version of events apparently given by a different witness, which is not in the record before me. But that would violate a basic stricture on Court review of arbitration awards: that "the court should accept the arbitrator's credibility determinations, even when there is conflicting evidence and room for choice exists" (Matter of O'Connell, 187 AD3d 1630, 1632 [4th Dept 2020]).

The arbitrator's findings indicate that Burby engaged in a single, unintended incident of wrongdoing, and his psychological profile evinces no likelihood of repetition.³ The imposition of a non-termination sanction for such an isolated act does not violate public policy (see Matter of State of NY, Off. of Children & Family Servs. [Civil Serv. Empls. Assn., Inc.], 79 AD3d 1438 [3d Dept 2010], lv denied 17 NY3d 706 [2011] [reinstatement of employee who "punched a juvenile resident [of a State facility] and pushed a coworker" did not violate public policy when arbitrator found that incident was isolated and not premeditated]).

In light of the foregoing, the petition to confirm the arbitrator's award is granted.

This constitutes the Decision & Order of the Court, which is being electronically filed with the Clerk's Office, with a copy e-mailed to counsel for both parties. The signing of this Decision & Order and its e-filing shall not constitute notice of entry and Counsel is not relieved from the applicable provisions of the CPLR concerning such notice and service thereof.

ENTER.

Dated: Albany, New York

March 30, 2023

_____________________________________

David A. Weinstein

Acting Supreme Court Justice

Papers Considered:

1.Notice of Petition with Verified Petition dated February 9, 2023, and appended Exhibits A through D.

2. Verified Answer, dated March 10, 2023.

3. Brief in Reply and in Further Support of Petitioners' Motion to Confirm, dated March 16, 2023.

FOOTNOTES

1.   The identity of this third party is not clear, and the record of the arbitration is not in the papers before me.

2.   One question left unanswered by the September 6 Opinion and Award is why, if Burby's actions were unintentional, he moved to fire a second shot at the victim's leg. But the only way to make sense of the arbitrator's description of events — given his other findings — is that Burby did not initially understand what had occurred, and continued to believe the gun was unloaded. In any event, the other findings made by the arbitrator are sufficient to preclude any public policy challenge to the award.

3.   As noted above, the arbitrator intimates in his September 6 Opinion and Award that the finding that Burby did not pose a danger to his co-workers was implicit in his initial determination, since he would not have allowed him to return to his workplace otherwise (see supra pp 3-4). The requirement of deference to an arbitrator's factual findings, however, does not require that I defer to such a conclusory determination. Rather,"courts have declined to disturb penalties imposed by arbitrators in circumstances where the findings revealed that the offenses were unlikely to be repeated" (see Matter of Bukowski [State of NY Dept. of Corr. & Community Supervision], 148 AD3d 1386, 1388 [3d Dept 2017 [emphasis added]). When, in contrast, the findings reached by the arbitrator support the conclusion that the employee would present an ongoing threat, courts have found the award violative of public policy even where the arbitrator did not reach the same conclusion (see Matter of New York Off. for People with Dev. Disabilities [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL—CIO], 193 AD3d 1305, 1309 [3d Dept 2021] [rejecting award allowing reinstatement of employee who was found to have engaged in sexual harassment; while court accepted "findings" of arbitrator, the sanction imposed "fails to account for the rights of other employees to a non-hostile work environment"]; Matter of Livermore—Johnson, 155 AD3d at 1397 [while recognizing need to accept arbitrator's "reasoning" and findings, the relief imposed of "reinstating [employee] to the position in which she would continue to have access to confidential information" she had previously disclosed would violate public policy]; Matter of Binghamton City School Dist. (Peacock, 33 AD3d 1074, [3d Dept 2006], appeal dismissed 8 NY3d 840 [2007] [reversing arbitrator's imposition of one-year suspension of teacher who engaged in improper relationship with student and showed no remorse; "policy prohibits an award in a disciplinary proceeding which would not adequately protect students from the teacher in the future"]). To hold otherwise, and assume that an arbitrator's award was sufficient to protect against future violations solely because the arbitrator reached that conclusion, would swallow the public policy exception whole. However, since the arbitrator has now set forth findings that support his conclusion — findings which I must accept — public policy cannot dictate a different result.

David A. Weinstein, J.