Petition for Writ of Certiorari — Young v. State University of New York
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SUPREME COURT OF THE UNITED STATES
October Term, 1992
DAVID YOUNG,
Petitioner,
against
STATE UNIVERSITY OF NEW YORK, HEALTH SCIENCE
CENTER AT BROOKLYN, UNIVERSITY HOSPITAL and
PAUL ROSENFELD, Acting Executive Director of University
Hospital and UNITED UNIVERSITY PROFESSIONS,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE STATE OF NEW
YORK
Petition for a Writ of Certiorari
ARTHUR H. GRAE
Attorney for Petitioner
5 Saunders Street
Hastings on Hudson, NY 10706
(914) 478-5000
QUESTIONS PRESENTED
Whether it violates the decisions of this Court for a State
Court to substitute its own opinion as to penalty for those of
an Arbitrator in a contractual disciplinary arbitration between
a public employer and an employee on public policy grounds
held pursuant to a union collective bargaining agreement?
Whether the substitution of the opinion of a State Court for
that of an Arbitrator in a disciplinary arbitration proceeding
between a public employer and an employee on the ground
that the award violates public policy is contrary to the Equal
Protect:on and due process Clause (Fourteenth
Amendment, U.S. Constitution)?
PARTIES
All of the parties to the proceeding in the New York State
Court of Appeals were the Petitioner, David Young and the
Respondents State University of New York, Health Science
Center At Brooklyn, University Hospital, Paul Rosenfeld and
United University Professions.
a
Table of Contents.
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Nee ec cccaviaksawnsencnenenesuvakacenanacans 3
IN ooo concsencssasacnndvecencavecesnssessrsncnaeee 4
DPT etree COP THI CASE. ....0........ccccccccccsscsescscsscsssssssssee 6
Neen ee ee a, consnnemndancnensevacenenses 1
Opinion of the New York State Court of
Appeals, decided July 1, 1992 0... eee 1
Neen ee ee esi scanhaiUbasssdabenananencnences 2
ORDER OF NEW YORK STATE COURT OF
APPEALS, DATED AND ENTERED ON JULY
CETERA ERE 2
Nee eo os scucinneanannsacseseecennene 4
Opinion of Arbitrator Jonas Aarons (On
Remand), dated March 23, 1992.0... ceceeeeeeeeee 4
i ionensetunceseanssnccans 19
Opinion of the New York State Court of
Appeals, dated September 12, 1991... 19
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Opinion of the New York State Court of
Appeals, dated June 4, 1991.00.00... cece eee eens 20
cis cavacscadsncansctausninnonss 21
Opinion of the New York State Supreme Court,
Appellate Division, Second Judicial
Department, Dated February 11, 1991.00.00... 21
FEE Aa a 25
Opinion of New York State Supreme Court,
Kings County (Gloria Cohen Aronin, J.), Dated
Nee ee warns chucsippnablnasionceanesunas 25
ica daalaidcindg canis 33
iV
Judgment of Supreme Court of the State of
New York, Kings County (Gloria Cohen Aronin,
J.), dated August 4, 1989 .......cccccccccsccssessessesseseeseeees 33
APPENDIX H .....ccccscsecsessesseeeees App. 37a
DECISION AND AWARD OF ARBITRATOR.........-.. 37
JONAS SILVER, DATED SEPTEMBER 15,
aa oa Reaaal Alls ant Aa ae 37
gM tia ccs rhnecPOGe S77 se tensa 101
Portions of Collective Bargaining Agreement
Between State of New York and United
University Professions, dated May 12, 1986.......... 101
Table of Authorities
Cases:
United Paper Worker's International Union v. Misco, 484
U.S. 28, 108 S. Ct. SG4 (1GB7) naan nnn 8,10
New York State Constitution
Article 17, §3 ------------------------------------------2---------nnnneeeennee 8,10
New York State Statutes
Public Health Law Section 2803-c, Ch. 648, L. 1975, p. 277
of the New York State Legislative Annual - 1975. -------------------- 11
C.P.L.R. 7511 --------------------------------2-nnnnnnnennnnnnennnneecenneeennne 8
C.P.L.R. 7511(e)----------- nonoacancncnnnnasannneanananannnaanananannnnanananaae 8
Public Health Law §2803-c------------------------------------------esseoee 11
IN THE
SUPREME COURT OF THE UNITED
STATES
October Term, 1992
DAVID YOUNG,
Petitioner,
against
STATE UNIVERSITY OF NEW YORK, HEALTH SCIENCE
CENTER AT BROOKLYN, UNIVERSITY HOSPITAL and
PAUL ROSENFELD, Acting Executive Director of University
Hospital and UNITED UNIVERSITY PROFESSIONS,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE STATE OF NEW
YORK
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the New York State Court of Appeals
denying leave to appeal is reported at 1992 N.Y. Lexis 1774.
and is reprinted infra at App. 1a. The opinion and award of
Arbitrator Jonas Aarons (on remand) dated March 23, 1992
2
is unreported and is printed infra at App. 2a. The opinion of
the New York State Court of Appeals denying a motion for
reargument of a motion for leave to appeal is reported at 78
N.Y.2d 1008;580 N.E.2d 1061;1991 N.Y. LEXIS 4090; 575
N.Y.S.2d 458 ard is reprinted at App. 19a. The opinion of
the New York State Court of Appeals dismissing a motion for
leave to appeal is reported at 78 N.Y.2d 908; 577 N.E.2d
1060; 1991 N.Y. LEXIS 876; 573 N.Y.S.2d 468 and is
reprinted at App.20a. The opinion at issue of the New York
State Supreme Court, Appellate Division, Second Judicial
Department is reported at 170 A.D.2d 510; 566 N.Y.S.2d 79;
1991 N.Y. App. Div. LEXIS 2076 and is reprinted at App.
21a. The opinion of the Supreme Court of the State of New
York, Kings County (Gloria Cohen Aronin, J.), dated June
15, 1989 is unreported and is reprinted at App. 25a. The
opinion and Award of Arbitrator Jonas Silver, dated
September 15, 1988 is unreported and is reprinted at App.
37a.
JURISDICTION
The judgment of the New York State Court of Appeals
denying leave to appeal to the Court of Appeals was entered
on July 1, 1992 (App. 1a). This Court has jurisdiction
pursuant to 28 U.S.C. Section 1254
STATUTORY PROVISION
N.Y.CPLR 7511 provides:
(a) When application made. An application to vacate or
modify an ward may be made by a party within ninety days
after its delivery to him.
(b) Grounds for vacating.
1. The award shail be vacated on the application of a
party who either participated in the arbitration or was served
with a notice of intention to arbitrate if the court finds that the
rights of that party were prejudiced by:
(i) corruption, fraud or misconduct in procuring the
award; or
(ii) partiality of an arbitrator appointed as a neutral,
except where the award was by confession; or
(iii) an arbitrator, or agency or person making the
award exceeded his power or so imperfectly executed it that
a final and definite award upon the subject matter submitted
was not made; or
(iv) failure to follow the procedure of this article,
unless the party applying to vacate the award continued with
the arbitration with notice of the defect and without
objection.***
(c) Grounds for modifying. The court shall modify the
award if:
1. there was a miscalculation of figures or a mistake
in the description of any person, thing or property referred to
in the award; or
2. the arbitrators have awarded upon a matter not
submitted to them and the award may be corrected without
affecting the merits of the decision upon the issues
submitted; or
3. the award is imperfect in a matter of form, not
affecting the merits of the controversy.
bs)
(d) Rehearing. Upon vacating an award, the court may
order a rehearing and determination of all or any of the
issues either before the same arbitrator or before a new
arbitrator appointed in accordance with this article. Time in
any provision limiting the time for a hearing or award shall
be measured from the date of such order or rehearing,
whichever is appropriate, or a time may be specified by the
court. ***
STATEMENT OF THE CASE
The employer (all respondents except United University
Professions) and the Union (respondent United University
Professions) were, at all times relevant here, parties to a
collective bargaining agreement covering certain employees
employed at University Hospital in Brooklyn, New York.'The
agreement provided that discipline (including discharge)
would be imposed only for just cause and contained a
grievance arbitration provision entitling the employee or the
union to take any to arbitration any "disciplinary grievance"
not settled or otherwise resolved. Any penalty proposed in
the employer's notice of discipline could not be implemented
until and to the extent that it was uphid by the disciplinary
arbitrator. The agreement further provided that a
disciplinary arbitrator's decision with respect to guilt or
innocence and penalty "shall be final and binding upon the
parties" to the agreement.
On February 19, 1988, the employer issued a notice of
discipline which proposed to terminate from State Service
the Petitioner David Young, a Registered Respiratory
Therapist, covered by the Agreement. The stated grounds
for discharge were two specifications alleging that on
February 8, 1988 on two occasions he used a syringe
containing blood and fluid drawn from a patient to draw blod
and fluid from an arterial line attached to a different patient
contrary to established hospital practice. (App. 40a)
A grievance was filed protesting the notice of discipline.
The parties were unable to resolve the grievance and the
union and the employee took the matter to arbitration.
1Respondent United University Professions ("UUP") is the exclusive
bargaining representative of the employees and was a party to the
collective bargaining agreement with the Employer.
7
Under the collective bargaining agreement, there was a
rotating panel of arbitrators agreed to by labor and
management. The arbitrator selected by the parties was
Jonas Silver, an experienced labor arbitrator.
The arbitrator found probable cause for the employer's
prior suspension of the petitioner David Young and that he
was guilty of the charge as specified in the Notice of
discipline, but determined that the proposed penalty of
termination was not appropriate. Instead, the penalty
imposed was suspension without pay for eight work weeks
(already served). He ordered the grievant reinstated to his
former position of Respiratory Therapist with back pay and
entitlements running from the expiration of the period of
suspension to the date of reinstatement. Young was warned
and admonished against any further breach of professional
responsibilities. (App. 98a-99a)
In formulating a penalty, the arbitrator was of the Opinion
that Young's infractions constituted a first time offense. His
previous eight year record of employment at the Hospital did
not disclose any other examples of violations of professional
performance relating to his work. Young had also received
Satisfactory appraisals for the period November 7, 1980
throught November 7, 1985 and individual category ratings
ranging from good to excellent and outstanding. Young was
appointed to permanent status as a Technical Specialist at
the Hospital in April of 1986. Three physicians wrote letters
Supporting his permanent appointment who were familiar
with his work at the Hospital. In recognition of his
outstanding work, he was granted discretionary salary
increases in the years 1981, 1982, 1983, 1985 and 1987.
He was also given the responsibility of training a number of
Respiratory Therapists at the Hospital. The arbitrator
therefore considered that a penalty comensurate with the
gravity of the wrongdoings without, “however maiming
Young permanently as a Respiratory Therapist such as
might very well be a likely consequence of termination,
constituted the appropriate measure. He therefore imposed
8
an eight week suspension without pay and a warning. (App.
94a-99a)
The employer refused to comply with the arbitration
award, but, instead, instituted this lawsuit (Article 78
Proceeding) under N.Y. C.P.L.R. 7511, seeking a judgment
vacating that portion of the arbitrator's award which
assessed an eight week suspension without pay on the
grounds that the arbitrator exceeded his power and that the
failure to dismiss Young as proposed was irrational and
contrary to the public policy of the State of New York. In the
alternative, the employer sought an order directing a
rehearing before another arbitrator limited to the issue of
penalty. In its petition, the employer alleged, inter alia, that
the award contravened public policy. (App. 25a)
The union and David Young filed a cross motion pursuant
to N.Y.C.P.L.R. 7511(e) to confirm the arbitrator's award.
(Id)
The Supreme Court, Kings County held that the
arbitrator's award as to penalty was in violation of the public
policy of the State of New York, notwithstanding the
collective bargaining agreement which permits the arbitrator
to assess the appropriate penalty. The Court cited this
Court's holding in United Paper Worker's International Union
v. Misco, 484 U.S. 29, 108 S. Ct. 364 (1987) as its authority
to vacate the award. The Court sought to find such public
policy from a generalized statement of hospital health care
in the state Constitution (Article 17.3) and from rules and
regulations authorizing the Commissioner of Health to
supervise and inspect the hospitals in the State of York. In
addition the Court found further public policy from the
Patient's Bill of Rights springing from the New York Public
Health Law. The Court granted the petition and vacated so
much of the award as directed a penalty of only two months
suspension. The matter was remanded to a different
arbitrator for "further proceedings not inconsistent with [the
Court's] opinion.” (App. 29a-32a, App. 33a) The Court
9
further provided in its judgment that the employer was
authorized to terminate David Young forthwith. (App. 33a)
The Supreme Court of the State of New York, Appellate
Division, Second Judicial Department unanimously affirmed.
The Court concluded that the arbitrator's determination that
the penalty of discharge was inappropriate violated the
State's allegediy strong public policy of providing high
quality, efficent, and effective hospital services which met
generally accepted standards of professional medical
practice in a clean, safe, and Sanitary environment. (App.
23a) Thus, it was determined that the lower court did not err
in vacating the reduction of the penalty imposed from
discharge to a two month Suspension.(Id)
A motion brought in the New York State Court of Appeals
for leave to appeal was denied on June 4, 1991 onthe
ground that the order sought to be appealed from [at that
time] did not finally determine the proceeding within the
meaning of the New York State Constitution. (App. 20a)
Reargument of that motion was denied. (App. 19a)
The Arbitration was then remanded to a different arbitrator
in compliance with the Appellate Division's Order. Arbitrator
Jonas Aarons heard the entire proceeding and issued a
second Arbitration Award. (App. 4a) The second arbitrator
felt bound by the prior judicial proceedings invalidating the
prior penalty and therefore imposed a penalty of termination.
(App. 14a - 18a)
A motion for leave to appeal to the Court of Appeals was
then made on behalf of the petitioner David Young, which
was denied on July 1, 1992 without opinion. (2) The
arguments set forth herein involving United Paperworkers
International Union v. Misco, Inc. Supra were advanced.
It is from the denial of the motion by the New York State
Court of Appeals for leave to appeal that the Petitioner
David Young seeks this writ of Certiorari. The union, not
10
having sought such a writ, has been joined as a party
respondent herein.
In United Paperworks International Union v. Misco, supra,
this Court held that while a Court may refuse to enforce a
collective bargaining agreement when the specific terms
contained in that agreement violate public policy, such public
policy must be properly framed and the violation of such a
policy must be clearly shown if an award is not to be
enforced. Such policy must be ascertained by reference to
the laws and legal precedents and not from general
considerations of supposed interests. A formulation of
public policy based only on general considerations of
supposed public interests is not the sort that permits a court
to set aside an arbitration award that was entered in
accordance with a valid collective bargaining agreement.
Simply stated, the lower courts sought to artificially create
a public policy from a state constitutional provision
authorizing health care for the citizens, rules and regulations
of the State Commissioner of Public Health giving him power
and authority to inspect hospitals and the Patient's Bill of
Rights emanating from the New York State Public Health
Law. Using that approach, such a rationale could be utilized
to discharge every single employee who works for a hospital
who commits any errors who becomes involved in a
disciplinary arbitration. In essence, it is the substitution of
the Court's views for those of the disciplinary arbitrator
chosen by the parties.
Article 17, Section 3 of the New York State Constitution
does not prohibit arbitration of disciplinary matters or
mandate termination for conduct involving patient care:
The protection and promotion of
the health of the inhabitants of
the state are matters of public
concern and provision therefor
shall be made by the state and
11
by such of its subdivisions and in
such manner, and by such
means as the legislature shall
from time to time determine.
Certainly this language sets forth a general policy, nota
specific one. There is no specific act of the New York
Legislature which bans or limits arbitration of employee
disciplinary grievances in the health care field. There is no
local legislation in New York State which bars an arbitrator
from imposing a penalty of less than termination in health
care related disciplinary proceedings.
The lower courts' reliance on New York Public Health Law
Section 2803-c as authority for a public policy limiting
arbitration in the health care field is also misplaced, because
it is at best applicable in a general manner to nursing homes
and related facilities and not to this proceeding. See
"Memorandum of Senator Karen S. Burstein" regarding
Public Health Law Section 2803-c, Ch. 648, L. 1975, p. 277
of the New York State Legislative Annual - 1975. See also,
“Governor's Memoranda on Bills Approved (including Ch.
648, L.1975, pp. 441-442 of the New York State Legislative
Annual-1975.
Public policy grounds as the basis for vacatur of arbitration
awards must be explicit, well defined and dominant and
ascertained by referece to laws and legal precedents that
are well defined and dominant and not from general
considerations of supposed public interests. In this case, no
patient injury is contained in the record. The first arbitrator
weighed in his considerations the State's arguments
concerning the effect of the grievant's conduct upon patients
and the well being of the public, the fact that it was a first
time offense, his eight years of service, letters of
recommendation, performance appraisals, and five
discretionary salary increases (awarded for superior
performance) as being mitigating factors. He was thus
penalized by the loss of two months pay. This took into
12
account his good employment record. No overarching
public policy ground exists to support vacatur. Unless a
policy prohibits in an absolute sense particular matters being
decided or certain relief being granted by an arbitrator, an
application to vacate an award should be denied.
The holdings below encourage employers to drag out the
grievance process through court challenges to arbitration
awards. Regardless of the disposition of any particular
“public policy" challenge to an arbitration award, it is
indisputable that the national labor policy is damaged by
lack of finality and the delay that attends the efforts to
secure judicial overturning of such awards. Where the effort
succeeds, there is both a direct injury to the process of
arbitration in that case and an example that will further
encourage the filing of more such cases in court. The
holdings below serve as an invitation that a broad degree of
judicial creativity is available to employers who resist
compliance with arbitration. Inevitably, such will serve as a
beacon to guide other litigants to delay the process of
arbitration, In a day and age of ever increasing litigation,
parties are resorting to arbitration for expeditious resolution
of their disputes. This has freed up the Courts to a certain
extent from every heavily increasing burdens.
Respectfully submitted,
Arthur H. Grae
Attorney for Petitioner
5 Saunders Street
Hastings on Hudson, NY 10707
Telephone No. 914-478-5000
App. 1a
APPENDIX A
Opinion of the New York State Court of Appeals, decided
July 1, 1992
In the Matter of State University of New York, et al..
Respondents, v. David Young, et al., Appellants.
Mo. No. 488
COURT OF APPEALS OF NEW YORK
1992 N.Y. LEXIS 1774
July 1, 1992
OPINION: [*4]
Motion for leave to appeal denied with one hundred dollars
costs and necessary reproduction disbursements.
App. 2a
APPENDIX A-1
ORDER OF NEW YORK STATE COURT OF APPEALS,
DATED AND ENTERED ON JULY 1, 1992.
STATE OF NEW YORK,
COURT OF APPEALS
At a session of thc
Court, hcld
atCourtof
Appcals Hall
in the City of
Albany on the
first day of
July A.D. 1992
Present, HON. SOL
WACHTLER, Chief Judge,
presidiny.
Mo. No. 488
In the Matter of State University
of New York, et al-,
V.
David Young, et al.
Appellants-
A motion for leave to appeal
to the Court of Appeals in the above
cause having heretofore been made upon
App. 3a
the part of the appellants herein and
papers having been submitted thereon and
due deliberation having been thereupon
had, it is
ORDERED, that the said motion
be and the same hereby is denied with
one hundred dollars costs and necessary
reproduction disbursements.
Donald M. Sheraw
Clerk of the Court
App. 4a
APPENDIX B
Opinion of Arbitrator Jonas Aarons (On Remand),
dated March 23, 1992
In The Matter Of The Arbitration Between
STATE UNIVERSITY OF NEW YORK HEALTH
SCIENCE CENTER AT BROOKLYN
-and-
UNITED UNIVERSITY PROFESSIONS
(DAVID YOUNG, GRIEVANT)
The history of this case
began when grievant Young received a
Notice of Discipline dated February 19,
1988, stating that the Public Employer
sought to terminate him for the follow-
ing:
"1. On or about February 8, 1988, at
approximately 2 a.m., while in
the Extended Recovery Room at the
University Hospital you used a
syringe containing blood and
App. 5a
fluid drawn from an arterial line
attached to patient number 24-
2754/Maresca/to draw blood and
fluid from an arterial line
attached to patient number 25-
4221/James/contrary to
established Hospital practice.
"2. On or about February 8,
1988, at approximately 6:30
a.m while in the Extended
Recovery Room of the
University Hospital, you used
a syringe containing blood and
fluid drawn from an arterial
line attached to patient
number 25-4221/James/to draw
blood and fluid from the
arterial line attached to
patient number
28-8754/Manzi/contrary to
established Hospital
practice."
Hearings were held before an Arbitrator,
resultant from the filing of a grievance on
behalf of grievant by the Un;ted University
Professions. The hearings were held over a
five-day period, and apparently a
considerable amount of testimony was taken,
as well as documentary evidence offered. The
Issues in that matter were:
"1. Was there probable cause
consistent with the terms of the
Agreement between the UUP and the
State to suspend David Young on
App. 6a
February 13, 1988? If not, what
shall the remedy be consistent
with that Agreement?
"2. Is David Young guilty of
misconduct as specified in the
Notice of Discipline dated
February 19, 1988?
"3. Consistent with the terms
of the Agreement between the
UUP and the State, if he is
guilty, is the proposed
penalty of termination
appropriate and, if not,
what shall the appropriate
penalty be?"
After an extended
discussion of all of the Issues
presented, including the proposed
penalty, the Arbitrator awarded on
September 15, 1988, as follows:
"1. State University of New York,
Health Science Center, at
Brooklyn, had probable cause to
suspend Respiratory Therapist
David Young effective February
13, 1988.
"2. David Young is guilty of the
charge as specified in the Notice
of Discipline dated February 19,
1988.
"3. The penalty of termination
proposed by the State is not
appropriate.
wa.
"5.
"6.
App. 7a
The penalty imposed upon David
Young shall be suspension without
pay for eight work weeks effective
February 13, 1988, to the
termination of that eight work week
period. Within a reasonable time
after receipt of this Opinion and
Award, State University of New
York, Health Science Center at
Brooklyn, shall restore David Young
to his former position of
Respiratory Therapist with back pay
and entitlements running from the
expiration of the period of
suspension set forth above to the
date of reinstatement.
In effectuating 4, above, there
shall be deducted from the amount
of back pay, any earnings David
Young may have gained from
employment while under
suspension, the objective being
to make Young whole but not
excessively whole for the period
from the termination of the
Suspension directed in 4, above,
to the date of reinstatement.
David Young is directed to
comply with all official
requests made of him in
connection with 4 and 5,
above.
David Young is warned against
any further breach of
professional responsibilities.
Thereafter, the State commenced
an action pursuant to Section 7510 and
7511 of the New York CPLR by way of Order
App. 8a
To Show Cause dated October 7, 1988,
seeking to vacate, on public policy
grounds the Award set forth above, in
particular that part of the Award as
directed the penalty of only two months'
suspension without pay for the misconduct
found by the Arbitrator. The UUP, on
behalf of the grievant, at the
proceedings before Judge Aronin sought to
have the petition denied and crossmoved
to confirm the Arbitration Award in
accord with the provisions of CPLR
7511(e).
Judge Aronin found that the
issue before her was:
". . . the appropriateness of
vacating, on public policy grounds,
an award arising out of a public
sector arbitration brought to review
the termination by State University
of New York of respondent Young's
employment. Although State
App. 9a
University of New York terminated
Young, the arbitrator reduced the
termination to suspension."
The Judge, after reviewing the
facts and considering the arguments,
found that:
", . . the arbitrator's penalty
aspect of the award to be irrational
and violative of the public policy
of the State of New York."
The Judge set forth the law to
be, and I will quote, although excluding
the citations set forth by Judge Aronin,
as follows:
"Tt is well settled law that an
arbitration award must be confirmed
if it is neither violative of a
strong public policy nor totally
irrational. However, a Court is
clearly justified in vacating an
arbitration award on the ground that
'the arbitrator exceeded his power
and made an irrational award in
violation of a "public policy which
is beyond the waiver."'
Significantly, 'public policy,
whether derived from, and whether
explicit or implicit in statute or
App. 10a
decisional law, or inneither, may
also restrict the freedom to
arbitrate. '
"Indeed, whereas here, the award
contravenes a strong public policy,
which ‘almost invariably involves an
important constitutional and
statutory duty or responsibility, '
the Court may set aside the award.
"In the case at bar, it is
established fact that respondent
Young, used the same syringe to
withdraw bodily fluids from various
patients,-who were in grave physical
condition. Moreover, the threat of
infection from various blood-borne
diseases such as AIDS (Acquired
Immunodeficiency Syndrome) and
hepatitis were the very real danger
imposed by Young upon the patients
hospitalized in the State University
of New York at Health Center at
Brooklyn.
"Significantly, it is clear that
said patients, by virtue of their
physical condition, were not in the
position to supervise the quality of
their care nor to protest the lack
thereof in the State-run medical
facility.
"Under these circumstances, the case
at bar falls within 'the spectrum of
situations in which the State of New
York takes on responsibility to
protect and care for individuals,
particularly those who lack
capacity.' And thus, the 'State's
role as guardian' is ‘inviolate as a
matter of public safety' and cannot
App. 11a
be bargained away or otherwise
abrogated.
"Thus, this Court finds, under the
rare and compelling circumstances
present herein, that the
arbitrator's award, which reduced
Young's discharge from State
service, to a mere suspension
without pay, is a violation of the
public policy of the State of New
York, notwithstanding the collective
bargaining agreement which permits
the arbitrator to assess the
appropriate penalty. In so
concluding, this Court is well aware
that the determination of an award
to be violative of public policy
must be based on an important
constitutional or statutory duty or
decisional law, not just an
assessment of general considerations
of matters of public interest.
Indeed, it is the strong public
policy of the State embodied in the
New York State Constitution and
Public Health Law which the instant
arbitrator's award fails to honor."
Judge Aronin goes on to state:
"Thus, in accordance with the
aforementioned well settled public
policy embodied in the Constitution,
the Public Health Law, and legal
precedents, this Court determines
that the instant arbitration award
is indeed violative of public
policy.
"Moreover, the State's retention of
the respondent herein, in violation
of the aforementioned public policy,
may expose the State to liability.
This is especially true at this
App. 12a
time given the staggering number of
persons afflicted with AIDS and the
inability of medical science to cure
this disease.
"Certainly then, the conduct of the
respondent herein, which exposed the
patients to the very real danger of
contracting AIDS and other diseases
clearly has exposed the hospital and
State to liability. This fact
provides this Court with an
additional, compelling reason to
conclude that the arbitrator's refusal
to award termination is plainly
irrational."
The Judge noted under the rubric
"Conclusion" as follows:
"The State's petition is granted, so
much of the award as directed a
penalty of only two (2) months
suspension without pay is vacated,
the instant matter is hereby
remanded to a different arbitrator
for further proceedings not
inconsistent with this opinion. In
the interim, petitioner may
forthwith terminate respondent.
Thereafter, the State did in fact
terminate grievant Young.
However, the determination by Judge Aronin was
appealed to the Supreme Court of the State
of New York, Appellate Division: Second
Judicial Department, where the judgment
made by Judge Aronin was affirmed. The
App. 13a
Appellate Division wrote inter alia, and
I also exclude here citations, as
follows:
"An arbitration award must be sustained if it
is neither violative of strong public policy
nor totally irrational, and the arbitrator
did not exceed a specifically enumerated
limitation of his or her power pursuant to
CPLR 7511(b).
Here, as the Supreme Court correctly
concluded, the arbitrator's determination
that the penalty of discharge was
inappropriate did violate the State's strong
public policy of providing high quality,
efficient and effective hospital services
which meet generally accepted standards of
professional medical practice in a clean,
safe, and sanitary environment. This is
particularly so in view of the fact that the
incident involved was not an isolated one and
that Young continued to engage in this
potentially life threatening conduct after he
was repeatedly instructed to desist. Thus,
the Supreme Court did not err in vacating so
much of the arbitrator's award as reduced the
penalty imposed by the petitioners from
discharge to a two month suspension."
Thereafter, the matter was
appealed to the Court of Appeals of the
State of New York, which Court, on June 4,
1991, dismissed the appeal on the ground
that the Order sought to be appealed from
does not finally determine the proceeding
within the meaning of the Constitution.
App. 14a
Thereafter, the dispute here
regarding the penalty to be imposed on
grievant Young was submitted to the
undersigned, with the parties submittlng
memoranda in support of their respective
positions prior to a hearing held in
Albany, New York, on January 27, 1992, at
whichhearing counsel for the grievant and
the State had a full opportunity to be
heard on this matter, both regarding the
facts and arguments in support of their
respective positions.
As I view it, the Issue to be
determined by the undersigned is the
penalty to be imposed in light of the
judicial proceedings had following the
issuance of the initial Arbitration Award.
The parties have submitted
substantial memoranda in support of their
respective positions, the full record
before the varying judicial bodies, as
App. 15a
well as their memoranda submitted to the
initial Arbitrator, for me to consider.
Simply put, it is the position of
the State here that I must render an Award
consistent with the determinations of the
judicial authorities of the Supreme Court and
the Appellate Division.
The UUP, on the other hand, argues
on behalf of the grievant that I am not bound
by the decision of Judge Aronin,
nor the affirmation thereof by the
Appellate Division, but rather, I have
independent jurisdiction to make a
determination regarding penalty based
upon my review of the matter with
guidance, or even more, from the Award of
the initial Arbitrator here. The UUP, in
fact, argues that I should affirm the
penalty initially imposed by the original
Arbitrator that is, the eight week
suspension without pay. Failing that, I
may impose my own penalty, but such
should not be in the form of termination
App. 16a
as proposed by the judicial officers who
had had this case before them.
The above is a generalized
outline of the background of this
dispute. I have not set forth the full
details in exquisite form, but I have
considered all of the relevant arguments
and authorities offered by the partles in
support of their respective positions,
although such may not be set forth herein
at length.
The matter is properly before
me for determination.
AWARD
I have considered this matter
most carefully inasmuch as I believe it
is important to protect the integrity and
authority of arbitrators and their
awards. However, a careful examination
and consideration of the decisions of the
Courts involved here and the citations
offered by the parties in support of
their positions leads me to the
App. 17a
conclusion that I have no alternative,
considering all of the above as well as
how I view the collective bargaining
agreement, but to find that the grievant
must be terminated.
I make the above decision on
the basis of the entire record before me,
which includes the Arbitrator's Award
initially rendered in this case, the.
totality of the facts relating to the
misconduct, at least as such has been
proffered to me in the initial
Arbitration Award as well as the judicial
decisions, the collective bargaining
agreement, and all of the other relevant
circumstances.
In light of the conclusions
reached hereinabove, I see no reason to
discuss any other evidence or arguments
submitted herein by the parties; suffice
it to say I have considered all of the
relevant, material and pertinent evidence
App. 18a
and arguments submitted, although such
may not be set forth herein at length.
AWARD
The termination of the grievant
David YounG is affirmed.
DATED: March 23, 1992
Respectfully submitted,
S/JONAS AARONS, ARBITRATOR
AFFIRMATION
In accordance with Section 7505
of the Civil Practice Laws and Rules, I
hereby affirm that I have executed the
foregoing as my Opinion and Award in the
above-captioned matter.
S/JONAS AARONS, ARBITRATOR
App. 19a
APPENDIX C
Opinion of the New York State Court of Appeals, dated
September 12, 1991
In the Matter of State University of New York, et al.,
Respondents, v. David Young, et al., Appellants
Mo. No. 819
Court of Appeals of New York
78 N.Y.2d 1008; 580 N.E.2d 1061; 1991 N.Y. LEXIS
4090; 575 N.Y.S.2d 458
September 12, 1991
OPINION: [*1]
Motion for reargument of motion for leave to appeal
denied with one hundred dollars costs and necessary
reproduction disbursements.
App. 20a
APPENDIX D
Opinion of the New York State Court of Appeals, dated June
4, 1991
In the Matter of State University of New York, et al.,
Respondents, v. David Young, et al., Appellants
Mo. No. 394
Court of Appeals of New York
78 N.Y.2d 908; 577 N.E.2d 1060; 1991 N.Y. LEXIS
876; 573 N.Y.S.2d 468
June 4, 1991
OPINION: [*1]
Motion for leave to appeal dismissed upon the ground that
the order sought to be appealed from does not finally
determine the proceeding within the meaning of the
Constitution.
App. 21a
APPENDIX E
Opinion of the New York State Supreme Court, Appellate
Division, Second Judicial Department, Dated February 11,
1991
In the Matter of State University of New York, et al.,
respondents, v. David Young, et al., appellants
No. 653E
Supreme Court of New York, Appellate Division,
Second Department
170 A.D.2d 510; 566 N.Y.S.2d 79; 1991 N.Y. App.
Div. LEXIS 2076
January 3, 1991, Submitted
February 11, 1991
NOTICE: [*1] THE LEXIS PAGINATION OF THIS
DOCUMENT IS SUBJECT TO CHANGE PENDING
RELEASE OF THE FINAL PUBLISHED VERSION.
PRIOR HISTORY:
App. 22a
In a proceeding pursuant to CPLR article 75 to vacate so
much of an arbitrator's award as imposed upon David
Young the penalty of a two-month suspension from his
employment as a Registered Respiratory Therapist, David
Young and United University Professions appeal from a
judgment of the Supreme Court, Kings County (G. Aronin,
J.), entered August 4, 1989, which vacated that part of the
award and remitted the matter to a different arbitrator for a
new determination as to an appropriate penalty.
DISPOSITION: ORDERED that the judgment is affirmed,
with costs.
COUNSEL: Bernard F. Ashe, Albany, New York, (Rocco A.
Solimanlo and Ivor R. Moskowitz of counsel), for appellants.
Robert Abrams, Attorney-General, New York, New York
(Stephen M. Jacoby of counsel), for respondents.
JUDGES: Richard A. Brown, J.P., Vincent R. Balletta, Jr.,
Albert M. Rosenblatt, David S. Ritter, JJ., concur.
OPINION: DECISION & ORDER
The appellant David Young was discharged from his
employment as a registered respiratory therapist at
University Hospital of the State University of New York,
Health Science Center at Brooklyn, as a result of his having
[*2] used the same syringe to draw blood from several
crtically ill patients after being warned several times of the
dangers of that practice. He thereafter availed himself of the
arbitration procedure provided for in the collective
bargaining agreement with the State University of New York.
After a hearing the arbitrator determined that Young's
conduct constituted a serious "breach of aseptic technique *
** in violation of mandated Hospital Procedure", which
jeopardized the health of patients already in grave medical
condition. Nonetheless, the arbitrator concluded that, given
App. 23a
the fact that Young had been employed by the hospital for
some eight years without other examples of violations of
professional performance, discharge was inappropriate.
Instead, the arbitrator imposed a penalty of two months
suspension without pay. The
1991 N.Y. App. Div. LEXIS 2076, *2
State University of New York thereupon commenced this
proceeding to vacate so much of the arbitrator's award as
imposed that penalty, as violative of the State's strong public
policy to protect and care for its patients, particularly those
who are unable to care for themselves. The Supreme Court
concluded that the lesser penalty imposed by the arbitrator
did, in [*3] fact, violate that public policy, and vacated that
portion of the arbitrator's award. Young and the union of
which he is a member appeal, and we affirm.
"An arbitration award must be sustained if it is neither
violative of a strong public policy nor totally irrational, and if
the arbitrator did not exceed 2 specifically enumerated
limitation of his or her power siu«suant to CPLR 7511(b)
"(Matter of Grace Plaza of Great Neck v Turner, 130 AD2d
746, 747). Here, as the Supreme Court correctly concluded,
the arbitrator's determinativn that the penalty of discharge
was inappropriate did violate the State's strong public policy
of providing high quality, efficient, and effective hospital
services (see, Public Health Law @ 2800) which meet
generally accepted standards of professional medical
practice (see, 10 NYCRR 405.7[f][1]; 405.14[b]) in a clean,
safe, and sanitary environment (see, 10 NYCRR 405.7[b][3];
405.11). This is particularly so in view of the fact that the
incident involved was not an isolated one and that Young
continued to engage in this potentially life-threatening
conduct after he was repeatedly instructed to desist (see,
Matter of Ford v Civil Serv. Employee [*4] Assn., 94
AD2d 262; cf, Matter of Grace Plaza of Great Neck v Turner,
App. 24a
130 AD2d 747, supra). Thus, the Supreme Court did not err
in vacating so much of the arbitrator's award as reduced the
penalty imposed by the petitioners from discharge to a two-
month suspension.
App. 25a
APPENDIX F
Opinion of New York State Supreme Court, Kings County
(Gloria Cohen Aronin, J.), Dated June 15, 1989
MEMORANDUM DECISION OF JUSTICE GLORIA
COHEN ARONIN, DATED JUNE 15, 1989
SUPREME COURT, KINGS COUNTY, TRIAL TERM, PART 24
By Gloria Cohen Aronin, JF.
Dated June 15, 1989
Index No. 23711/88
In the Matter of the Application of
State University of New York, et al.,
Petitioners For a Judgment Pursuant to Section
7510 and 7511 of the CPLR against David Young
and United University Professions, Respondents.
In this proceeding, petitioners seek an
order pursuant to CPLR 7511(a) directing that
the portion of an arbitrator's award assessing
an eight (8) week suspension without pay against
David Young, a respondent herein, be vacated on
the grounds that the arbitrator exceeded his
power and that, insofar as the penalty imposed
was other than the proposed dismissal of
respondent Young from state service, the award
was irrational and contrary to the pu~lic policy
of the State of ~ew York.
Accordingly, pursuant to CPLR 751ll(c),
petitioners seek an order modifying the penalty
aspect of the award. In the alternative,
petitioners seek an order directing a rehearing
before another arbitrator limited to the issue
of penalty. Respondentsoppose the instant
application, requests that the petition be
denied, and cross-moves to confirm the subject
arbitration award pursuant to CPLR 75l1l(e).
Thus, the issue presented before this court
is the appropriateness of vacating, on public
App. 26a
policy grounds, an award arising out of a public
sector arbitration brought to review the
termination by State University of New York of
respondent Young's employment. Although State
University of New York terminated Young, the
arbitrator reduced the termination to
Suspension.
The undisputed facts, as resolved by the
arbitrator, reflect that Young, a respiratory
therapist employed by the hospital for eight 18)
years, had used one syringe to draw blood from
several critical-care patients on several
occasions. Moreover, the arbitrator found that
Young's denial of the aforesaid facts could not
be credited due to the presence of contradictory
physical evidence; the forthright mannerof the
state's witnesses, and certain remarks made by
Young h~mself which constituted an ~admission of
a break in sterile safeguards~. Accordingly, the
arbitrator found that the aforesaid ~breach of
aseptic technique. . .must per force be regarded
aS a serious matter warranting the conclusion
that, in so doing, Young, as a Respiratory
Therapist, committed a violation of mandated
hospital procedure~.
Indeed, the arbitrator went further to note
that Young,
“By inserting an already used
large syringe containing the
body fluid of a patient in the
course of drawing a blood sample
from the arterial line of
another patient, Young exposed
the succeeding patient to the
transmission of infectious
medical condition, He
continued his initial breach
of unalterable sterile
procedure despite the protests
of an observing nurse".
App. 27a
Notwithstanding these observations,
the arbitrator determined that the
penalty commensurate with Young's
wrongdoing was a mereeight (8) week
suspension without pay, rather than the
termination imposed bythe state. For
the reasons which follow, this court
finds .the arbitrator's penalty aspect
of the award to be irrational and
violative of the public policy of the
State of New York
LAW
It is well settled law that an
arbitration award must be confirmed if
it is neither “violative of a strong
public policy nor totally
irrational.Matter of Albany County
Sheriff's Local 775 (County of
Albany) ,63 NY 2d 654; Matter of Sprinzen
[Nomberg], 46 NY 2d 623, 630; Matter of
Grace Plaza of Great Neck, Inc. v.
Turner, 120 AD 2d 746, 747). However, a
court is clearly justified in vacating
an arbitration award on the ground that
"the arbitrator exceeded his power and
made an irrational award in violation of
"a pudlic policy which is beyond
waiver." (Matter of Ford v. Civil
Service Employees Assoc., 94 AD 2d
262,266, quoting from City of New York
v. Uniformed Firefighters Assn. Local
94, IAFF AFL-CIO, 58 NY 2a 957, 959: see
also Matter of Silverman (Benmor Coats),
61 NY 2d 299) Significantly, "public
policy, whether derived from, and
whether explicit Or implicit in statute
or decisional law, or in neither, may
also restrict the fxeedom to arbitrate."
Matter of Ford v. Civil Service
Employees Assoc., supra, at p. 266.
App. 28a
Indeed, where as here the award
cotravenes a strong public policy,
which "almost invariably involves an
important constitutional or statutory
duty or responsibility, the court may
set aside the award. (Port Jefferson
Station Teacher's Association,Inc v.
Brookhaven-Comsewoque Union Free School
District, 45 NY 2d 898, 899; Matter of
Ford v. Civil Service Employees Assoc.,
Supra, at p.266).
In the case at bar, it is
established fact that respondent Young,
used the same syringe to withdraw
bodily fluids from various patients:who
were in grave physical condition.
Moreover, the threat of infection from
various blood borne disease such as
AIDS (Acquired Immunodeficiency
Syndrome) and hepatitis was a very real
danger imposed by Young upon the
patients hospitalized in the State
University of New York at Health ~
Science Center at Brooklyn (see, Matter
of LaRocca v. Dalsheim, 120 Misc. 2d
697, 699, 703; District 27 Community
School Board v. Board of Education of
the City of New York, 130 Misc. 2d 398,
404).
Significantly, it is clear that said
patients, by virtue or their physical
condition, were not in a position to
supervise the quality of their care or
protest the lack thereof in the state run
medical.facility
Under these circumstances, the case at
bar falls within "the spectrum of situations
in which the State of New York;takes on
responsibility to protect and care for
individuals, particularly those who lack
capacity. And thus, the "state's role as
guardlan" is "inviolate as a matter of public
App. 29a
safety" and cannot be bargained away or
otherwise abrogated. (M er of For ivil
Service Employees Assoc, Supra, atp.
262-263).
Thus, this court finds, under the rare
and compelling circumstances present herein,
that the arbitrator's award, which reduced
Young's discharge from state service, toa
mere suspension without pay, is in violation
of the public policy of the State of New
York, notwithstanding the collective
bargaining agreement which permits the
arbitrator to assess the appropriate penalty.
In so concluding, this court is well aware
that the determination of an award to be
violative of public pollcy must be based on
an important constitutional or statutory duty
or decisional law, not just an assessment of
general considerations of matters of public
interest. (Port Jefferson Station Teacher's
Assoc., Inc, v, Brookhaven-Comsewoque Union
Free School District, supra, at p.899; United
Paper Worker's International Union vy. Misco,
ee ma U.8. oi 108 S. Ct. 364, 373; Matter
of Ford v. Civil Service Employees Assoc.,
supra) Indeed, it is the strong public
policy of the state embodied in the New York
State Constitution and Public Health Law
which the instant arbitrator's award fails to
honor.
The New York State Constitutlon,
Article 17, 3 provides that the
"protection and promotion of the
health of the inhabitants of the state
are matters of public concern" and
entrusts this responsibility to the
state. To effectuate this strong
constitutional policy, the Legislature
enacted Public Health Law 2800 which
provides:
"Hospital and related
services. . .are of vital
App. 30a
concern to the public
health. In order to provide
for the protection and
promotion of the health of
the inhabitants of the
state. . .the Department of
Health shall have the
central comprehensive
responsibility for the
development and
administration of the
state's policy with respect
to hospital and related
services. . ."
Thus, hospitals are charged by
statute with the obligation of
providing high quality, efficient and
effective services. (Matter of Fritz
vy. Huntington Hospital, 39 NY 2d 339,
348).
Moreover, the legislature
provided the Commissioner of Health with the
power to supervise and inspect hospitals for
the fitness and adequacy of the personnel,
rules and by laws, and standards of medical
care. (PHL 2803 (1) (a)). Hence, this court
can only conclude that the protection of
patients in hospitals is indeed a strong
public policy. Additionally, Public Health
Law Section 2803-c entitled "Rights of
Patients in Certain Medical Facilities",
provides that it is the public policy of the
state that every patient shall have the right
to receive adequate and appropriate medical
care.
The respondents seek to defeat the
application of this "public policy" to the
case at bar, relying on the statute itself
which applies to nursing homes. However,
:respondents opposition can be to no avail.
While this bill of rights is applicable to
nursing homes, the hospital has recognized
these rights and incorporated them into "The
App. 31a
Patient Bill of Rights" which is part of the
hospital's Policy and Procedure Manual.” Nor
does it seem that the hospital's adoption of
a similar bill of rights appears to be
inappropriate. Indeed, Public Health Law
2803(g) specicically provides that:
"The commissioner
shall require that every general
hospital adopt and make public an
identicical ststement of the.rights
and responsibilities of
patients..."
Secondly, there is certainly no logic
or reason to restrictively apply the
aforementioned public policy to nursing
homes, and not to hospitals . Indeed, all
sections of a law, statute or regulation must
be read together and harmonized with each
othei so as to give effect and meaing to the
entire law (McKinney's Statutes, Book l,
Section 98)
Thus, in acccordance with the aforementioned
well settled public policy embodied in the
constitution, the Public Health Law, and
legal precedents, this Court determines that
the instant arbitration award is indeed
violative of public policy.
Moreover, the states retention of the
respondent herein, in violation of the
aforementioned public policy, may expose the
state to liability. This is especially true
* fhe respondents oppose the court's
consideration of this, as well as other
documents, submitted by petitioner in support
of its public policy argument. However, that
the arbitrator was not fully presented "with
the vast array of public policy expressions
which require facatur of the award", dows not
preclude this court from considering said
document. (see, Matter of Ford v. Civil
Service Employees Assoc., supra, at 266)
App. 32a
at.this time given the staggering number of
persons afflicted with AIDS and the inability
of medical science to cure this disease.
Certainly then, the conduct of the
respondent herein, which exposed the
patients to the very real danger of
contracting AIDS and other diseases
Clearly has exposed the hospital and the
state to liability. This fact provides
this court with an additional,
compelling reason to conclude that the
arbitrator's refusal to award
termination is plainly irrational.
(Matter of Ford v. Civil Service
Em~loyees Assoc., supra, at 265)
CONCLUSION
The state's petition is granted, so much
ofthe award as directed a penalty of only two
(2) months suspenslon without pay is vacated,
the instant. matter is hereby remanded to a
different arbitrator for further proceedings
not inconsistent with this opinion In the
interim, petitioner may forthwith terminate
respondent.
Settle order on notice.
s/JUSTICE GLORIA COHEN
ARONIN
App. 33a
APPENDIX G
Judgment of Supreme Court of the State of New York,
Kings County (Gloria Cohen Aronin, J.), dated August 4,
Justice.
1989
At an I.A.S Part 24 of the
Supreme Court of the State
of New York, held in and for
the County of Kings at the
Courthouse at 360 Adams Street
in the City of Brooklyn, New
york on the 4th day of August,
1989.
PRESENT
HON. GLORIA COHEN ARONIN,
Justice
In the Matter of the Application of
STATE UNIVERSITY OF NEW YORK, HEALTH
SCIENCE CENTER AT BROORLYN, UNIVERSITY
HOSPITAL and PAUL ROSENFELD, Acting
Fxecutive Director of University
Hospital,
Petitioners,
For a Judgment Pursuant to Section 7510
and 7511 of the CPLR,
App. 34a
DAVID YOUNG and UNITED UNIVERSITY
Respondents.
UNIVERSITY OF NEW YORK, HEALTH SCIENCE
CENTER AT BROOKLYN, UNIVERSITY HOSPITAL
("HOSPITAL") and PAUL ROSENFELD, Acting
TT
Executive Director of University Hospital,
having commenced this action pursuant to
Section 7510 and 7511 of the CPLR by way
of Order To Show Cause dated October 7,
1988 seeking to vacate, on public policy
grounds, an award arising out ' of an
arbitration brought to review the
determination by the HOSPITAL to terminate
respondent DAVID YOUNG's employment; and
App. 35a
Respondents DAVID YOUNG and
UNITED UNIVERSITY PROFESSIONS having
filed their Answer and reply
papers dated November 9, 1988; and
NOW, upon reading and
filing the verified petition of the
HOSPITAL. and PAUL ROSENFELD, dated
October 6, 1988, and the exhibits
annexed thereto as well as the
accompanying memorandum of law,
also dated October 6, 1988; and
NOW, upon reading and
filing the Answer and of respondents
DAVID YOUNG and UNITED UNIVERSITY
PROFESSIONS verified November 9,
1988; and
This matter having duly come on to be
heard before the Court on the 23rd day of
November, 1988 and ROBERT ABRAMS, Attorney
General of the State of New York (TARQUIN JAY
BROMLEY, ; Assistant Attorney General, of
Counsel), havng appeared as attorney for
petitioners and BERNARD F. ASHE, Esq. (IVOR
App. 36a
R.MOSKOWITZ, of CounSel) having appeared as
attorney for-respondents, the matter havng
been submitted to the Court on that date, due
deliberation having been had and the Court
having issued its ,memorandum decision dated
June 15, 1989;
IT IS HEREBY ORDERED that, in conformance
with the memorandum decision dated June 15,
1989, a copy of which is attached hereto, the
petitlon is granted, so much of the award as
directed a penalty of only two (2) months
suspension without pay is vacated and the
instant matter is hereby remanded to a
different arbitrator for further proceedings
not inconsistent with the memcrandum
decision. In the interim, petitioners may
forthwith terminate respondent. ENTER
s/GCA
JUSTICE GLORIA COHEN ARONIN
WILBUR A. LEVIN, Clerk
FILED s/ 1989 Aug 4 2:20 p.m Kings County
Clerk's Office
App. 37a
APPENDIX H
DECISION AND AWARD OF ARBITRATOR
JONAS SILVER, DATED SEPTEMBER 15, 1988
STATE OF NEW YORK, GOVERNOR'S OFFICE OF
EMPLOYEE RELATIONS
DISCIPLINARY GRIEVANCE ARBITRATION
STATE OF NEW YORK, HEALTH SCIENCE CENTER
AT BROOKLYN, UNIVERSITY HOSPITAL
and
) AWARD
UNITED UNIVERSITY PROFESSIONS
(DAVID YOUNG, GRIEVANT) sep 19 1988
Office of the
University Counsel
APPEARANCES: For the State
Sanford Levine, University
Counsel
App. 38a
By: Pamela M. Williams,
Esq., Assistant Counsel
For United University
Professions
Bernard Ashe, Esq., General
Counsel, NYSUT-UUP
By: Ivor R. Moskowitz, Esq.
BEFORE: Jonas Silver, Arbitrator
Pursuant to the Agreement between
the parties, the undersigned was
‘eaeaiee by OER on March 23, 1988 to
hear and decide the issues set forth
below. Hearing was held in New York City
on April 11, May 19, June 20, July 14
and August 8, 1988 at which full
opportunity was afforded the parties to
present evidence and argument in support
of their respective contentions. By
August 29, the Arbitrator was in receipt
App. 39a
of briefs. The Issues As stipulated, the
issues are:
1. Was there probable cause
consistent with the
terms of the Agreement
between the UUP and the
State to suspend David
Young on February 13,
1988? If not, what shall
the remedy be consistent
with that Agreement?
2. Is David Young guilty of
misconduct as specified in
the Notice of Discipline
Gated February 19, 1988?
3. Consistent with the terms of
the Agreement between the
UUP and the State, if he is
guilty, is the proposed
penalty of termination
appropriate and, if not
what shall the appropriate
penalty be?
Suspension and Notice of
THIS
Proceeding under 19.7(a)(1) of the
Agreement, Diana J.Goldwasser, Deputy
Director, Labor Relations, Health
ScienceCenter, notified David Young, a
Registered Respiratory Therapist emp loyed
at the University Hospital, that he was
App. 40a
suspended withoutpay effective February 13,
1988. By Notice of Discipline dated
February 19, issued by Goldwasser, Young
was notified of theimposition of discipline
(proposed termination) for the
following"specific acts and conduct:
On or about February 8, 1988 at
approximately 2:00 a.m.,while in the
Extended Recovery Room at the University
Hospital, you used a syringe containing
blood and fluiddrawn from an arterial
line attached to patient No.24-2754
/Maresca/ to draw blood and fluid from an
arterial line attached to patient No.
25-4221 /James/ contrary to established
Hospital practice.
ex On or about February 8, 1988, at
approximately 6:30 a.m., while in the
Extended Recovery Room of the University
Hospital, you used a syringe containing
blood and fluid drawn from an arterial
line attached to patient No. 25-4221
/James/ to draw blood and fluid from
the arterial line attached to patient No.
28-8754/Manzi/, contrary to established Hospital
practice.
Background
As a Respiratory Therapist, Young was
assigned to the 12 Midnight to 8 AM shift
at the University Hospital ("Hospital").
ot La *
App. 41a
His duties on February 8, 1988, took him to
the Extended Recovery Room (ERR") attending
to patients (of whom there were four) whose
post open heart surgery required that he
draw arterial blood samples. The samples
are used to test for the level of blood
gases at four hour intervals. Once obtained
by the Respiratory Therapist, the sample is
brought to the lab by him and the results
transmitted for entry on the patient's
chart and assessment by the Doctor.
Testimony was received from Lynne Karenfil,
Senior Nurse Epidemiologist in the
Infection Control Department of the
Hospital and from Dr. Gerald Wolf, Vice-
Chairman of the Department of
Anesthesiology, Chairman of the Quality
Assurance Committees, and then Medical
Director of Respiratory Therapy, as to the
procedure used at the Hospital to obtain
arterial blood gases from a patient's
arterial line.
App. 42a
The procedure employs an aseptic
technique whereby the patient's arterial
line is linked to a line leading to a
pressurized bag operated by means of a
transducer so as to flush the line
containing a heparinized saline solution
thereby keeping it open to the patient's
arterial line. By manipulating the valve
controlling the port on the stopcock of the
patient's line, a back flow of in-line
fluid is aspirated by and into a large
Syringe attached to the stopcock port
together with emerging arterial blood.
After a sufficient amount of fluid and
blood has entered the large syringe as a
forerunner of the patient's undiluted
blocd, the large syringe is removed and
disposed of. A small syringe is then
inserted in the stopcock port to capture
the actual blood sample brought to the lab.
The entire arterial line
is then flushed clean by means of a
pressurized saline solution.
App. 43a
The steps involved in the procedure
are contained in a document, part of the
Respiratory Therapy Policy and Procedure
Manual, revised as of April 1987,
maintained on the open book shelves of the
Respiratory Therapy Office. The procedure
was characterized in the testimony of UUP
witness Dr. Peter B. Kane, Associate
Professor of Anesthesiology, Health Science
Center at Syracuse, as a “worthwhile one
and worthy of being followed, nand by Dr.
Wolf as standard for the Respiratory
Therapist while variable for a Doctor who
may be taking arterial blood gas samples.
After certain preliminary steps including
the preparation of a 3cc syringe with
heparin to prevent clotting, the
Respiratory Therapist cleans the stopcock
(mid-line) with an alcohol swab; then
inserts the l10cc syringe into the closed
port; rotates the handle on the stopcock so
the syringe can withdraw or aspirate in
line-fl~id and blood; after the 10cc
App. 44a
Syringe begins to withdraw arterial b2iood
approximately 5cc's, closes stopcock and
dispose/s/ of entire syringe;" inserts 3cc
heparinized syringe into closed stopcock
port; opens port, rotating stopcock handle;
withdraws .S to 1.5cc's of arterial blood;
closes stopcock to patient and flushes
arterial line so saline solution flushes
freely on a sterile gauze; clears stopcock
port with alcohol gauze; closes stopcock to
atmosphere and flushes pressurized solution
through entire arterial line until it runs
Clear; holds 3cc syringe vertically and
manipulates to remove air bubbles; caps
Syringe; on lab slip marks certain patient
indications and checks off tests required
by the physician; then delivers syringe and
lab slip to the laboratory; the laboratory
performs blood gas analysis as soon as
possible and reports the results
immediately for the therapist, recording
all results in the arterial blood gas
analysis log book; finally, after analysis
eceanie che Ag,
BS Bin Detain?
App. 45a
is completed, the Respiratory Therapist
will record all values on the appropriate
clinical sheet. The-procedure document
notes under heading “Complications; 1.
Infection. The syringe with blood can carry
potential pathogens in it. Be sure stopcock
ports are thoroughly cleaned and capped to
insure proper aseptic technique. n
(Underscoring in original.)
As described by Dr. Wolf, the use of
an alcohol swab to clean the stopcock port,
though in the official procedure, is of
limited value. While it will remove evident
blood particulates, principle reliance is
placed on flushing the line with a saline
solution. Even sterilizing with a saline
solution, as Dr. Wolf further indicated,
will not serve to eliminate the presence of
bacteria and virus on the stopcock port.
Hence to avoid the introduction of foreign
pathogens from one patient to another, the
procedure mandates that the 10Occ syringe
used to start the aspiration of fluid and
App. 46a
blood be discarded and not used from one
patient to another. In this way the
possibility for the transmission of
infectious diseases, whatever the decree of
probability,* which may lodge in the
already used syringe of another patient
were that syringe to be inserted in the
stopcock port of the arterial line of a
subsequent patient, is eliminated.
* High" in Dr. Wolf's opinion; “miniscule"
in Dr. Kane's opinion.
Dr. Kane testified that in his
procedure for drawing blood samples, he
would not go from patient to patient with
the same syringe and would stop anybody
doing so because of the possibility of
spreading disease. Dr. Kane testified
further that once he brought this usage to
the attention of anybody doing so, he
App. 47a
~would expect him to stop and if he did not
stop, I might file an incident report. . oe
would refer the matter to the supervisor to
write an incident report."
The specifications of the charge
against Young allege that early on Februarv
8, he used the same syringe containing
blood and fluid from the arterial line of
patient Maresca to draw blood and fluid
from the arterial line of patient James and
again later that morning used the same
procedure to involve a succession from
patient James to patient Manzi. In support
of the allegations, the State relies on the
testimony of RN Janet Nelson and RN Eulalee
Muir on duty in the ERR at the same time as
Young who assert that they witnessed all or
part of such mode of operation by Young.
In defense Young maintains that he did
not use the same syringe from one patient
to another. Rather, he asserts, that on the
first go round he employed a separate and
fresh syringe in drawing blood and fluid
App. 48a
from patient to patient, discarding each
before going on. What ne did do was to use
a technique of his own devising to clean
the stopcock port by reinserting the same
aspirated syringe on a patient's arterial
line, pulling back so as to create a vacuum
to dry up the tip of the port while
flushing the line. On the second occasion,
he made a mistake relative to drawing
Manzi's blood sample by failing to note
that he had not obtained the utlimate blood
sample and so had to start over again with
the same syringe containing Manzi's first
aspirate.
In substance, Nelson testified on
direct that she was caring for James and
Manzi when she first saw Young who came
into the ERR between 1:30 and 2 AM to draw
blood. Young then went to patient
Wellington in an isolation room. When he
came out, Muir asked Young for a drop of
blood from Wellington. Young had two
App. 49a
syringes in his hand, one large containing
a mixture of blood and fluid which he
handed to Muir. Muir said she wanted blood,
not a mixture. Young took back the big
syringe and kept it in his possession.
Nelson's testimony on direct continues in
which she states that Young ~then aspirated
from a female patient /Maresca/ with this
syringe. NM after Young left the female
patient, he went to James‘ bed and there
she saw him use the same syringe to
aspirate. Neison said nothing to Young
because Hshe couldn't believe what she
saw." At this point, according to Nelson,
she told Muir that Young “was using one
syringe from one patient to the other" to
which Muir replied -- “Are you mad?" Nelson
answered “Yes, it happened."
Later that morning between 6:30 and 7
AM, Nelson was at patient Manzi's bed. Young
came with a syringe “already containing
bloody fluid. She saw him “set the syringe
on top of Manzi's respirator, remove the
App. 50a
stopcock and proceed to aspirate the same
Syringe on Manzi's line. When Nelson
questioned the procedure, Young said “there
was nothing wrong because he was aspirating,
not injecting. nNelson then asked Young
whether he would like someone else to do it.
Young replied, according to Nelson, that he
~was right, there was nothing wrong, I have
been doing it right along. You don't know how
long I have been doing this. nMuir then
“started talking to Young and took him by the
arm. "
On cross with regard to the events
between 1:30 and 2 AM, Nelson indicated that
Muir wanted a drop of blood from Wellington
in order to test for glucose; that she did
not see Young drawing blood from Wellington.
-nbut that was the first patient he came
to, nadding that Young would have drawn blood
from another patient "only if he had come in
with it;" that from Wellington, Young went to
Maresca where, “paying attention" to his
movement from six feet away and viewing him
an: Fee >.
App. 51a
frontally, she saw Young draw fluid from the
female, "maybe" using a 12cc syringe. She
testified further that she did not see a
syringe “sticking out of Young's pocket" that
she estimated with regard to Wellington that
the syringe had two to three cc's of fluid;
that with reference to the female patient,
the same syringe was used to add about 6cc's;
and that with reference to James about 3cc's
were added to the syringe as she viewed that
patient across from Maresca.
With regard to the events of later
that morning, Nelson testified on cross
that she was behind the curtain giving
Manzihis bath when Young entered followed
by Muir. Young had with him a large syringe
containing fluid and a small syringe
without blood in it. As for Young's reply
to her regarding his method, Nelson
indicated that she did not know what he
meant by aspirating one way or the other.
In substance, Muir testified on direct
that she was assigned to Wellington in
App. 52a
particular when she saw Young come into the
ERR, take blood from Wellington's arterial
line in a big syringe and take a small,
heparinized syringe from his pocket in
which he took a blood sample. She asked
Young to give her a specimen of blood which
she needed for a chemical test. He had a
big syringe with aspirated blood in one
hand and a small syringe with blood in the
other. He handed her the large syringe
which she said she did not want; then he
gave her a drop of blood from the small
Syringe. Muir testified that she told Young
not to take the big syringe out of the room
-- that it had to be discarded. She
testified further that Young then went to
Maresca's bed -- "his back to me, I saw him
but could not see his hands.~ Muir then saw
Young move from Maresca's bed to James'
bed. Muir could not see James, adding that
Nelson could see standing between Maresca
and James. Nelson said to Muir -- "He's
using the same syringe," to which Muir
App. 53a
replied -- “Are you mad?" Muir then went
over to James' bed and saw Young "with a
big syringe in James' line; I said you have
to use clean syringes for each patient.
.like changing gloves. .. discard it. n
Young did not say anything. According to
Muir, she saw an amount of aspirate in the
big syringe which was more than the start
for one patient and the size of the line.
She discussed with Nelson what had happened
and they decided to see what would happen
on the next round for drawing blood
samples.
Muir's testimony continues that
between 6 and 6:15 AM, she saw Young take
Wellington's blood gas specimen. She told
Young to discard the big syringe which he
did. Young then moved to Maresca, reached
into a container and took out a clean
Syringe. At this point Muir went away but
returned when Young finished and went to
James' bed. Muir followed, and according to
her testimony, saw that Young “had a
—————
App. 54a
Syringe with already aspirated blood in
James' line.~ Muir said -- nYou have to use
a clean syringe for each patient; you
cannot go from one to another. nYoung
replied that "he only used it to pull back.
nMuir “grabbed it away and gave him a new
Syringe.~ Muir then went to Wellington
following which she — to Manzi behind
Young. There she saw him use a big syringe
containing aspirated blood which he first
placed on the respirator top. She said --
"You can't do this." Young replied _ "I
only use to pull back." Muir then spoke to
the Supervising Nurse.
On cross, Muir testified with
reference to the first go round, that at
James' bedside the big syringe was "pulled
way back," three-quarters full or about 9
to 10cc's ina syringe “usually" of 12cc
Capacity; that she did_not see Young
discard Wellington's syringe; that she did
not know if Young took Wellington's
Syringe to Maresca's bed; that at James'
App. 55a
bed she saw the aspirated syringe in
Young's hand but did not know whose fluid
was in the syringe; and that at James'
bed, Young discarded the aspirated syringe
and went on to Manzi's bed.
With regard to the events on the
second go round, Muir testified on cross,
that Young discarded a “big syringe" after
drawing from Wellington, moved to Maresca'
bed and on to James' bed. She testified
further that she could not see if Young
had a syringe in his hand when he left
Maresca's bed -- there are a lot of
disposal canisters and he need not have
turned around to discard. Muir further
testified that she was close behind as
Young went from Maresca to James and that
if he had taken out a fresh syringe from
his pocket, she would have seen it. She
indicated that it was at James' bed that
she saw an aspirated syringe in Young's
hand for the first time. There she saw him
take a syringe from his hand with about
App. 56a
Scc's of aspirate and insert it in James'
line. She indicated further that she did
not know where the syringe came from.
Th imon
In substance, Young testified that at
about 1 -AM on February 8, he questioned
Nelson at James' bed as to whether any
patients were under precaution regarding
Grawing blood or fluid because of
infection. She said "we" do not know. His
concern was about Wellington in the
isolation room. It was not until about 2
AM, having been “Suspicious” of his status
and finding out from the "nurses" that he
was not under precaution, that he drew
Wellington's blood as the last in the early
morning sequence, starting with Manzi at
1:30 AM upon returning to the ERR. He had a
supply of 5cc syringes to aspirate and 3cc
syringes to obtain the blood sample which
he carried in his pockets in plastic
containers.
App. 57a
His description of his procedure as to
Manzi is -- opened the upper port and took
the tip off the 5cc syringe; put the
syringe in the stopcock; opened the lever
on the patient's side of the line to pass
up fluid; closed the container (high
pressure bag) side; drew on the syringe and
saw if fluid and blood came up; stopped
fluid at stopcock when a “little” fluid and
blood behind it appeared in the syringe;
withdrew aspirated fluid and blood in the
5cc syringe and put the syringe on top of
sterile gauze; took 3cc syringe from
patient's table, opened port and drew a
little more than one-half cc of blood from
the patient; closed port and took 3cc
syringe out and put it on top of sterile
gauze; used 5cc syringe containing “some"
blood and fluid to again insert it in the
port; closed patient's side, opened bag
side; pressed button up the line to let
fluid (glucose, heparin, saline) clean by
going down the line under pressure; now
App. 58a
cleaned closed port by opening syringe and
drawing in fluid over the port, a vacuum
having thereby been created in the tube so
all the fluid in the tip of the port dried
up and the tip was cleaned; opened whole
line to flush final; put back stopcock;
threw the larger syringe in a container for
disposables and took the smaller with the
blood sample to the laboratory "maybe" at
1:40 AM.
Young's testimony is that he then went
on to draw an arterial blood sample from
James using new 5cc and 3cc syringes and
the
same technique. This sample he took to the
lab three to five minutes after taking
Manzi'‘s sample to the lab -- there was no
ice to hold the samples against
deterioration. Maresca was next and the
same procedure was followed, each time
disposing of the 5cc syringe ina
container. Wellington was last. Here Muir
asked him for a drop of Wellington's blood
App. 59a
for a chemical test and Young mistakenly
handed her the 5cc syringe instead of the
3cc, both syringes being in his hands.
According to Young, he had not been able to
dispose of the 5cc syringe because
Wellington's bed blocked the way to the
disposal container in his room. He
"squeezed out~ a drop of blood for the test
from the 3cc syringe and disposed of the
S5cc syringe in the container at the nurses
station opposite Wellington's rvom. In
connection with the sample Nelson remarked,
according to Young, that the test could be
run from the fluid and blood in the larger
syringe as well as from the sample in the
smaller syringe. Muir agreed but said she
preferred to use the pure blood sample.
Young then took Wellington's sample to
the lab at “around 2 AM" each sample having
been taken to the lab at three to five
minute intervals. He testified that the log
book maintained by the lab which he
checked, reflected the order in which he
z
$ She,
App. 60a
brought the samples -- Manzi, James,
Maresca and Wellington. =
The next round involving the drawing
of arterial blood samples in the ERR took
place, Young testified, at 6:40 AM where he
drew a sample from Maresca first since
patients Manzi and James' beds were
Surrounded by curtains, they being in the
processof being cleaned. He employed the
Same technique, using new 5cc and 3cc
Syringes and disposed of the 5cc syringe in
the container at the nurses station. He
then drew Wellington's sample and disposed
of the 5cc syringe in the container at
Wellington's bed. James was next -- same
method, new syringes and disposal.
According to Young, at this point there was
no discussion with the nurses.
At about 7;20 AM, he went to Manzi,
rushing the procedure because he had to
give a report to the incoming staff due at
7:30 AM. Nelson was working at Manzi's bed
and she called for Muir to help her. Young
App. 61a
testified further that he proceeded to
aspirate with a 5cc syringe, obtained some
fluid and blood, but the fluid went back up
the line as he applied pressure from the
upper button to flush the port, believing
mistakenly that he had already obtained a
sample in the 3cc syringe. Discovering his
error in not having replaced the larger
with the smaller syringe, he used the same
Scc syringe to start the procedure over
again, including his port cleaning method.
Nelson said to him -- "You are using the
same syringe." Young did not reply __ "I
did not have a good impression regarding
these two." When he returned from the lab,
Muir was at Manzi's bed and asked him __
“Did you use a dirty syringe?" Young did
not answer her __ “If I remember
correctly." When “they” again asked the
question -- "I said I did not use a dirty
Syringe, there was no contamination."
"They" asked -- “How about a patient with
Aids?" to which he replied -"“The way I
App. 62a
clean up, contamination is very slim.Still
later that morning at about 8 AM, Nelson
said to Young -- "You used a dirty
syringe," to which he replied -- “Have you
ever seen me use a dirty syringe before?"
Nelson replied -- "No." Young retorted --
“That's enough."
The Contentions
In general, the State argues — the
testimony of Nelson and Muir establish that
on the occasions in question one or the
other Nurse or both saw Young use the same
Syringe to aspirate blood and fluid from
patient Maresca to patient James on the
first go round and the syringe of James to
Manzi on the second go round. Pointing to
certain elements of Young's testimony as
being inconsistent or incredible on its
face, the State would conclude that, by
using the same syringe from one patient to
another, Young violated the applicable
procedure in which he had trained at the
Hospital and for which he holds the
By;
<-—-
Ns
a?
App. 63a
requisite standing. Hence the State would
have the Arbitrator uphold the charge-s.
F~rther, the State would have the
Arbitrator affirm that there was probable
cause for Young's suspension, asserting
that the Hospital acted on reports and
evaluations from staff representatives
indicating that Young had repeatedly used
an infection inducing method in drawing
blood gases despite being warned initially
by the Nurses on duty to refrain from such
use, thus presenting a potential danger to
the health of patients by his continued
employment. In terms of the ultimate
penalty, the State argues that termination
is the only appropriate penalty in light of
the State's obligation constitutionally and
Statutorily to provide patients with
“adequate and appropriate medical care. nIn
the State's view there are no mitigating
factors -- the grievant “has evidenced no
understanding that this /the reuse of
App. 64a
Syringes/ or any other action of his was
wrong. "
In general, UUP argues on behalf of the
grievant, that the State had no probable cause
to suspend Young because, under the Agreement
(Section 19.7), it had the option of
reassigning him and nits failure to do so
without explanation requires the Arbitrator to
vitiate Mr. Young's suspension." As to the
specifications of the charges, UUP maintains
that Young is innocent. The first
specification concerning the events from about
1:30 AM on, it is argued, does not reflect the
order in which they occurred which is said to
be reflected in the log book -- “first Manzi's
and then James' blood. .. . "“ Further, that
Young brought the samples to the lab one by
one rather than in a batch because he
testified that on the night of February 13,
the ice machine was broken. Further, that the
State failed to produce the lab technician and
relied instead on the testimony of the
Assistant Supervisor, who testified generally
|
App. 65a
as to the lab procedures and without producing
the manual. Further, that the only written
report of incident does not refer “in any way
to the first specification of the charge."
Further, that Berenice Feldman, a supervising
nurse, testified that only one incident was
reported to her, allegedly occurring at 6:30
AM. Further, that Young testified that in the
presence of Goldwasser and Lissauer, he was
not questioned about an incident taking place
at 1:30 or 2 AM. The argument concludes on
this score by the assertion that “it is most
probable that the incident set forth in
Specification 1 never occurred." Nelson and
Muir mistook what they saw as "Mr. Young has
maintained. .."
With regard to specification 2 pertaining
to the events of 6:30 AM on, the argument is
made that the nurses were mistaken in what
they saw, their testimony was “conclusions. "
In reality Young's testimony should be
credited that he did not use a previous
patient's syringe but rather a technique of
App. 66a
using the same syringe on the same patient a
second time as a “vacuum cleaner" to clean out
the port for which he was not charged.
The argument continues to the effect
that, assuming Young is guilty of the charges,
the penalty "should be no more than a
reprimand." The reasons given are that there
was no Hospital standard for drawing arterial
blood samples; if there was such, the staff
respiratory therapists had no knowledge of its
existence and, “per force," were never trained
in its use; Young was never given any standard
training at the Hospital in this- regard and,
in fact, instructed other therapists “in what
he considered to be the appropriate procedure
based on his own experience;"if there was a
standard procedure and if there was a breach,
Dr. Kane “dramatically illustrated the
extremely small possibility of danger to
patients of a violation of such procedures as
is charged. . .;" and the penalty “should be
minimal" in light of Young's favorable
evaluations, discretionary pay increases and
App. 67a
recommendations from physicians at the
Hospital.
The Arbitrator proceeds to an analysis
of the testimony in the light of the
credibility of the testimony of Nelson and
Muir as compared with that of Young as well
as the testimony of additional witnesses
not heretofore adverted to. Central to the
inquiry is the proposition advanced by the
Gefense to the effect that the nurses were
mistaken both as to the succession of
patients on the first go round and the
optical illusion that they suffered from on
both go rounds -- not being able to
Gistinguish the “vacuum cleaner~ method of
Young employing the same large syringe to
clean up the stopcock port on the arterial
line, from a ' repeated use of a previous
patient's aspirated syringe to aspirate
on the succeeding patient's line.
1. Initially Young testified that he
had checked the lab log and it showed the
App. 68a
order of his drawing blood samples which he
asserted he brought in separately.* But the
pages of the log as to the four patients
show a listing of samples by patient names
not the order of drawing samples. As
testified by Bennett Richardson, Assistant
Supervisor, Clinical Chemistry Laboratory,
and as evidenced by the marking on the log
by the lab technician, the downward line
effectdrawn past the names in place of
individual time notations, indicates
receipt of the samples as a batch at the
same time, i.e., 1:42 and 6:58 AM,
respectively. When confronted with the
; pages from the'log, Young's testimony
shifted to the effect
*UUP errs in its brief by referring to
Young's testimony on the first go round
as from "James first and then Manzi.~
Young's testimony in this connection
commences with Manzi.
that the time of processing the samples
by the lab entered on the pages showed
the order of his separate deliveries. In
App. 69a
this regard, Richardson testified that
samples brought in a batch are processed
in the order selected by the lab
technician from out of the batch. *
Young's reference to the lack of
ice on February 8 as a would be factor
in bringing in the samples one by one is
the subject of equivocation on his part.
He gave as reason both that the ice
machine was “broken” and "closed."
Furthermore, Richardson testified that
ice is applied in the lab by either the
Respiratory Therapist or the lab
technician whereas Young would have the
ice applied in the E~R had it been
available. The Arbitrator notes that
icing is not listed in the official
procedure as a responsibility of the
Respiratory Therapist from which the
reasonable inference is that icing, to
_the extent needed, is a function to be
performed in the lab.
App. 70a
* The absence of the lab technician as a witness
is no ground for a negative inference.
Richardson testified as to the course of
procedure regularly conducted by the lab in
relation to the-Respiratory Therapist. The
critical part of his testimony, i.e., delivery
of the blood samples in a batch, is borne out by
the markings on the log pages quite apart from
any testimony the lab assistant may have given.
Besides UUP was free to call the lab technician.
The testimony of Bernice Feldman, Associate
Director of Nursing, relative to one incident
affecting two patients as reported to her by
Nelson and Muir, may be explained by the
testimony of the two nurses that this incident,
occurring later in the early morning, was the
one witnessed by both together. The incident
report of Night Supervisor M. Drislane refers to
an incident occurring at 6:34 AM. It also reads,
Young -- nwas observed to be using same syringes
to withdraw heparinized blood from arterial line
on several patients. nSeveral is more than two.
In any event, whether or not an earlier incident
occurred is to be determined on all the relevant
and credible evidence.
There is another and significant
factor for not crediting Young's testimony
as to order and time of taking blood
samples. It was urgent, Young testified,
that he prepare a report for the incoming
staff at 7:30 AM; he got to Manzi on the
second go round at 7:20 AM. That time later
App. 71a
in his testimony became 7:30 AM as he
looked at the clock in the midst of his
error in forgetting to draw the 3cc
syringe. Interestingly enough, however, the
lab log show Manzi's sample as coming in at
6:58 AM along with the other samples and
the lab processing completed as to Manzi at
7:24 AM, thus undermining further Young's
testimony that he took each sample to the
lab as he drew them and that the lab's
processing, if not the order of receipt,
would show as much.
2. Young's second go round sequence
from James to Man7i is, to that extent,
consistent with that testified to by Muir.
However, there are departures in the first
go round sequence especially telling in the
order as to patient Wellington, placed last
by Young and first by —— and Muir.
Nelson and Muir testified that Young went
to Wellington first to draw an arterial
blood sample after he entered the ERR.
Admittedly Younq made a mistake by handing
App. 72a
Muir the large syringe when she asked for a
blood specimen for a test. Nelson was only
an onlooker. It strains credibility to the
breaking point for Young to testify, as he
did, that Nelson nevertheless would venture
the opinion that the large syringe with
fluid and blood would serve the-purpose as
well as a pure blood sample and for Muir to
then say that she agreed but preferred the
blood from the 3cc syringe. The
testimony of Muir is unmistakable as to
which syringe she wanted blood from and
that she unreservedly rejected the
proferred large syrince.
The disposal site also presents
inconsistencies in Young's testimony. If
the bed in Wellington's room blocked access
to the container so that he had to dispose
of the large syringe at the nurses station,
as Young testified, he managed to use that
same container on the second go round as he
also testified. Indeed, his own diagram of
Wellington's room shows Wellington's
eee
App. 73a
disposal container at a point against the
far wall apart from and not blocked by the
bed. The distance between the bed and the
nurses station is markedly more than that
to the container in the room. Muir
testified that she told Young not to take
the large syringe out of the room but to
discard it. She did not see him do so.
Nelson followed the exchange between Muir
and Young regarding Muir's request for a
blood specimen. She saw him continue on
with the large syringe in his possession,
containing Wellington's aspirated blood.
As for the claimed concern of Young as
to the stat-us of Wellington in relation to
a blood and fluid precaution, it is not at
all clear why a patient recovering from
cardiac surgery is any the less amenable to
testing for the level of blood gases.
Rather than wait for an answer from the
nurses, Young had only to examine the log
as to the activity of the previous
Respiratory Therapist which shows that a
App. 74a
blood gas sample had been taken from
Wellington earlier. A precaution, even if
it existed,* is not a cause for
* Dr Wolf testified that to his
recollection none of the four patients
were under a precaution.
delay until assured otherwise. It means
just that -- take precaution.
The Arbitrator does not accept Young's
version of the order of succession on the
go rounds or that he disposed of the large
syringe used on Wellington at the nurses
Station. Rather does he find that Young
retained possession. ‘
3. The testimony of Muir and Nelson on
the two go rounds as to Young's movements
to the extent that each was an eye witness
is consistent within itself and in relation
to one another. Both Nurses testified ina
forthright manner. Neither attempted to
App. 75a
embellish or to exaggerate. Muir indicated
in a precise manner what she did and did
not see. She saw Young on the first
sequence go to Maresca's bed after
Wellington, could not see his hands and did
not know if he took Wellington's syringe
with him. Nor could she see James until
after Nelson, who could see James' bed,
told her -- "He's using the same syringe~
-- whereupon she moved to James' bed. There
she saw a "big syringe" in James' line
containing more aspirate than for a start
up, ~pulled way back, nabout three-quarters
__or 9cc's full in what she believed to be
the usual 12cc syringe. Where the fluid
came from she did not know.
Nelson's testimony is in agreement
with Muir as to the identity of the patient
sequence on the first go round. It is also
in line with Muir's description of the
amount of excessive aspirate in the syringe
used by Young on James. It also jibes with
Muir's statement as to Nelson's exclamation
App. 76a
relative to Young's action, i.e., he “was
using one syringe from one patient
to the other." It was Nelson who testified
to having actually viewed the use of the
same large syringe in Young's possession
after Wellington to aspirate on and from
Maresca and then to aspirate again on
James. The Arbitrator notes that it was not
merely the drawing of blood and fluid that
is mentioned in Nelson's testimony but also
the taking of the same syringe from patient
to patient. If the former view resulted
from mistaking a second use for the “vacuum
cleaner" technique peculiar to Young, the
physical act of carrying over the same
Syringe certainly could not have been a
mere optical illusion. Even if all that was
seen by Nelson and Muir was a chimera
both-nurses together resolved to observe
Young's actions in drawing arterial blood
gas samples on the next go round so as to
learn if seeing is believing.
App. 77a
Muir testified that before going to
Manzi's bedside, she observed Young take a
syringe from his hand, not having taken a
syringe out of his pocket as he went there
from Maresca, and proceed to aspirate on
James' line. She readily acknowledged that
she did not know where the syringe he
actually used came from. But she testified
without equivocation that the syringe he
used had about Scc's of aspirate in it
before he inserted it in James' line, that
she objected to its use, “grabbed~ it away
from Young and gave him a new syringe.
It is Nelson's testimony that at
Manzi's bedside, Young entered with a large
syringe containing “bloody fluid" and an
empty small syringe. He placed the large
syringe on the respirator top, removed the
stopcock on the line and proceeded to
aspirate with the large syringe. Muir
substantially corroborated Nelson as to the
Same occurrence. Both nurses objected to
Young's procedure.
App. 78a
4. Just as the Nurses expressed
amazement to one another upon Nelson's
communication to Muir of what she had
witnessed on Young's early go round, so too
Gid they testify that they, Muir in
particular, communicated to Young their
concerns relative to his aspiration
procedures in the words as referred to in
the recital of the overall testimony
heretofore set forth. Young answered, in
their testimony, with replies like “pulled
way back. . . aspirating, not injecting.
.I have been doing it right along.
Young, on the other hand, testified
that he had no "discussion" with the nurses
-- they did not question his procedure
until, 7:20 AM at Manzi, a time indicated by
the Arbitrator as erroneous. He did not
answer __ "I did not have a good impression
regarding these two." Still later when he
allegedly returned from the lab, Muir asked
_._. nDid you use a dirty syringe?" Young did
not answer her __ nif I remember correctly.
App. 79a
nUpon being pressed for an answer, he
denied using a dirty syringe __ "there was
no contamination." Asked about a patient
with Aids, he replied -- "The way I clean
up, contamination is very slim. "Still
later at 8 AM that morning, according to
Young, Nelson said to him -- “You used a
dirty syringe," and he replied -- “Have you
ever seen me use a dirty syringe before?"
Nelson answered -- "No." Young retorted --
“That's enough."
The Arbitrator credits the Nurses'
account of their objections to Young and
his replies as they testified. It is not at
all credible that they would wait until
Young returned to the lab to voice concern
about his actions in aspirating at Manzi's
bedside or that Muir did not object on the
two occasions at James' bedside, objections
manifestly consistent with and fitting
their versions of what they had seen. Nor
would they string out their objections, the
last according to Young, coming as late as
App. 80a
8 AM, well after both had given their
accounts to supervision.
4. In testifying that he employed the
same large syringe twice, Young indicated
that it was 5cc's in capacity. He did not,
however, provide enlightenment as to the
amount of fluid and blood he drew to start
up the flow from the patient's arterial
line. He spoke only of a "little" and
~some." The standard procedure, as
heretofore set forth, calls for drawing
S5cc's ina 1Occ syringe. The kit in
evidence supplied a 12cc syringe. Dr. Wolf
testified that less than 4cc's would not
provide an adequate start up which should
run from 4 to 7cc's. Nurse Muir, who is
trained in drawing blood gas samples,
referred to the use of either a 10cc or a
12cc syringe -- “usually 12cc's." The
amount of aspirate they testifed they saw
in Young's syringe would indicate a 10 or
12cc syringe. David Lymus, Respiratory
Therapist at the Hospital, called by UUP,
App. 81a
testified that he used a 5cc syringe,
qualifying his answer, however, with "if
available." If Young used a 5cc syringe not
only to initially aspirate but to reinsert
with aspirate and draw back so as to create
a vacuum ahead as a way of cleaning the tip
of the stopcock port while flushing the line,
it does not appear that there would be
sufficient space left at the head of the
syringe to aid in generating a vacuum. The
Arbitrator does not accept Young's claimed
use of a 5cc syringe.
5. Young described his “vacuum cleaner"*
as efficient and time saving in assuring the
removal of contaminants, bacteria and virus.
However, Dr. Wolf testified that the saline
solution which passes over the port though
removing particulates, has no effect on
microorganisms. Obviously the “vacuum
cleaner" of Young would not have any such
effect. Rather, by not disposing of the large
syringe after aspirating as mandated by the
prescribed procedure and indubitably
App. 82a
underscored in the testimony of Drs. Wolf and
Kane and, instead, as Young testified,
placing the syringe on sterile gauze pending
reuse in his claimed technique, would serve
only to expose the tip of the syringe to air
borne microbes.' Certainly this is not the
efficient method of cleaning the stopcock
port. Nor would the introduction of a third
step by reuse of the large syringe, provide a
time saving.
6. Young testified that he learned the
process of drawing blood gas samples at
Bellevue which was similar to that of the
Hospital but that he alone devised the
"vacuum cleaner." He testified further that
he did not receive training at the Hospital
other than on the job and that he underwent
only annual CPR review to keep up his
certification. He also testified that he was
assigned
* This shorthand term is taken from UUP's
brief.
App. 83a
to and did train four Respiratory
Therapists of whom two, including Lymus,
were trained by him in his “vacuuming"
method. With regard to the document
describing the procedure for drawing
arterial blood gas samples, he asserted he
never saw it before February 8 though he
"believed" he saw the Procedure Manual.
If Young did not see the ABG
procedure, it was there for him to see in
the Manual kept in the Department Office.
In any case, there is no variance for reuse
allowed as to the requirement for the
disposal of the syringe containing
aspirated blood. Young underwent more than
a CPR review. The record shows by way of
exhibit titled “Evidence of Current
Competence," signed by Technical Director
David Lissauer, that Young was reviewed as
to competency in April 1986. The method of
review “through observation" is stated as
“Individual is required to undergo
App. 84a
annual C.P.R. proficiency and A.B.G.
analysis through the Technical and Medical
Directors." After "What procedures has
individual, through observation, been
deemed competent to perform," there appears
--" . . .arterial line and puncture for
arterial blood gases and 02 administration.
nLymus testified albeit with the prefatory
"I think," that he was shown how to draw
blood gases at the Hospital bedside.
Furthermore, Lymus gave no sign through
questioning or otherwise in his testimony,
that he had received training from Young in
the “vacuum cleaner" method. His testimony
was that he cleaned by flushing the line of
remaining blood and ~sed an alcohol swab to
wipe the ports.
7. Young's testimony that he
mistakenly failed to take Manzi's blood
sample in the small syringe, did not notice
his error apparently until he misapplied
his “vacuum cleaner," and then had to
reinsert the aspirated large syringe and
App. 85a
start over again, does not ring true. It is
difficult to conceive of an experienced
Respiratory Therapist such as Young
forgetting to obtain a blood sample.* All
the more so in that later in his testimony
he added to the fault in having been
dlstracted by looking at the clock which
showed 7:30 AM. As previously found by the
Arbitrator, the lab log shows 6:58 AM** as
the arrival time of all the samples and
7:24 AM as the completion of the processing
of Manzi's blood.
8. Feldman testified that it was 7:10
or 7:20 AM that same morning when she spoke
with Young after Nelson and Muir reported a
6:30 AM incident to her which she thought
concerned James and Manzi. She asked Young
if he had used the same syringe on two
patients. His reply was -- “Yes, I thought
I changed the two syringes." She replied
that this was a break in sterile
technique." Young then said __ "I only
withdraw to get a specimen. . .I was only
App. 86a
drawing back on the syringe." Young did
not testify with respect to his statements
to Feldman. At a conference with Lissauer
that morning, according to Young, he told
Lissauer -- ~It was not clear to others
what I did."
* Yet Young volunteered the
information that he had also ~skipped
over" drawing the 3cc sample on
another patient, this one
unidentified.
** Moreover, in addition to the use of
a vertical arrow by the lab technician
to show 6:58 AM as the arrival of the
batch of samples, there is 6:58 written
in alonqside Manzi and Wellington as
well as the continued arrow between
Wellington and Manzi.
Given the importance Young attached in
this proceeding to his "vacuum cleaner"
technique as having been wrongly perceived
by the Nurses, his expressions to Feldman
and to Lissauer regarding his method, as
well as those voiced to the Nurses as
Stated by them, are hardly descriptive of
what he considered to be a unique
procedure. The reasonable expectation,
particularly under the circumstances of
App. 87a
being in the presence of supervision, would
call for elaboration of his professed
departure from the standard procedure of no
second use of the syringe utilized to start
up the flow of blood. It would also call
for an explanation of his professed error
with regard to skipping over the 3cc sample
of Manzi's blood which was not even alluded
to by Young in the conferences so far as
the record discloses. Young's reply to
Feldman -- "Yes, I thought I changed the
two syringes," stands as an admission of a
break in sterile safeguards as to James and
Manzi.
9. Nelson had observed Young draw
blood gas samples for two years. Muir was
trained in the drawing of arterial blood
samples which Nurses also perform at the
Hospital. Young testified that he had
employed his “vacuum cleaner" over the
years. If that be the case, it defies
credibility not to believe that some Nurse
App. 88a
at sometime would not have similarly
mistaken Young's unique method and
reported her observation, she too
suffering from an optical iilusion.
The use of the "vacuum cleaner“ method
by Young is not an element of the charge, the
gravamen of which lies in utilizing the same
syringe with aspirate from the named patient
to the named patient on two occasions on
February 8. Admittedly, he reinserted a large
syringe with aspirate on the same patient's
arterial line. The Arbitrator does not,
however, accept his ~vacuum cleaner~ defense
that in so doing, he reinserted the same
syringe. In view of the foregoing
considerations, including those negating
Young's credibility, the Arbitrator finds
credible the testimony of Nelson that on the
early go round she saw Young take
Wellington's large syringe containing
aspirated contents and employ that syringe
successively in drawing blood gas samples
from the arterial lines of patients Maresca
App. 89a
and James as well as that of Muir that she
saw Young go from Wellington to Maresca and
then to James where she saw an amount of
aspirate in the large syringe which was more
than the start for one patient. On the second
go round Muir testified credibly that she saw
Young aspirating on James' line with a
syringe already containing blood and fluid
and that Young went to Manzi from James, 2
particular succession in which Young concurs.
Melson testified credibly that Young entered
to go to Manzi's bedside with a syringe
already containing bloody fluid which he
placed on the respirator top, removed the
entry to the stopcock port and proceeded to
aspirate with that same syringe. Muir
testified to the same effect as to what she
saw at Manzi's bedside.*
* Muir indicated that she ~grabbedn Young's
~big~ syringe with already aspirated blood
that he was using to draw on James' line
and gave him a new syringe. Clearly, that
Young placed a “big" syringe with aspirate
in it on the respirator top after he
App. 90a
entered with Muir behind him, is
established by the testimony of both
Nurses. The Arbitrator makes the reasonable
inference, under all the circumstances,
that the syringe with aspirate brought by
Young to Manzi was the syringe given him by
Muir which he used to aspirate on James'
line a second time having been interrupted
by Muir on the first attempt. Furthermore,
as heretofore found, Young admitted to
Feldman relative to the 6:30 AM incident
involving James and Manzi that he had used
the same syringe on two patients, saying
nothing .about a mistake on Manzi s line.
Both Karenfil and Dr. Wolf testified
that the use of the same syringe on more
than one patient constitutes a break in the
basic technique for infection control in
that blood again enters the patient's line
and stopcock port with the potential of
exposing the patient to the transfer of
bacteria and virus. ~echnical articles on
the danger of transmission of infection and
the potential of this occurring in
analogous parenteral procedures were
introduced in evidence by the State and
testified to by Drs. Wolf and Kane. They
differed on the inferences they drew from
the articles regarding the probability of
App. 91a
transmission on reuse of the same syringe.
They agreed, however, as the Arbitrator has
noted, that reuse of the same syringe from
patient to patient is not permissible.
Whatever the probabilities of transmission
of infection, breach of aseptic technique
in the fashion found herein must per force
be regarded as a serious matter warranting
the conclusion that, in so doing, Young, as
a Respiratory Therapist, committed a
violation of mandated Hospital procedure.
Accordingly, on a preponderance of the
credible evidence, the Arbitrator concludes
that Young is guilty of the specifications
and charge as there stated, i.e., in regard
to the succession therein of drawing blood
and fluid from Maresca and using the same
syringe to draw blood and fluid from James
early on February 8, 1988 and drawing blood
and fluid from Jeane and using the same
syringe to draw blood and fluid from Manzi
later that morning. Probable -Cause
App. 92a
Dr. Wolf, in his capacity as Chairman
of the Quality Assurance Committees, which
Committees also considered and approved,
the recommendation of Lissauer that Young
be suspended and his termination sought.
Preliminarily, there was the incident
report of Drislane reflecting "Reported by
nursing staff. . . n-the opinion of
Karenfil of a breach of sterile technique,
the interview by Feldman, and the interview
by Lissauer. In view of the information at
its disposal and the danger of nosocomial
infection indicated thereby arising out of
Young's violation of an indispensable step
in the procedure for drawing arterial blood
gases, the Arbitrator finds that the
Hospital had "probable cause~ to determine
that Young's "continued presence on the job
represents a potential danger to persons
/patients/ .. .~ (19.7 a.1l.) UUP'sS
contention that the Hospital failed to
temporarily reassign Young to a position
App. 93a
not involving direct patient care as an
alternative to suspension, is misplaced.
Section 19.7 a.l. provides in pertinent
part --
a. .. . As an alternative to
such suspension, the
employee may be temporarily
reassigned.
1. The appointing authority, or
its designee may suspend,
without pay or temporarily
reassign an employee, when
the appointing authority,
or its designee, determines
that there is probable
cause that such employee's
continued presence on the
job represents a potential
danger to persons or
property or would seriously
interfere with its
App. 94a
operations. Such
determination shall be
reviewable by the
Gisciplinary arbitrator.
(Underscoring supplied. )
A reading of the foregoing clearly
establishes that the Hospital possessed the
authority, upon a determination of the
existence of probable cause, to then either
Suspend or temporarily reassign Young. It
is only the determination of probable cause
se, i.e., "Such determination," which
is reviewable by the Arbitrator. The
alternative courses of action were for the
Hospital to decide in its unreviewable
discretion save that the Arbitrator may
consider a temporary reassignment in
assessing penalty if, in fact, the Hospital
had elected to temporarily reassign rather
than suspend.*
The Penalty
By inserting an already used large
syringe containing the bloody fluid of a
App. 95a
patient in the course of drawing a blood
sample from the arterial line of another
patient, Young exposed the succeeding
patient to “he transmission of infectious
bacteria and virus thus jeopardizing the
health of patients already in grave medical
condition. He continued his initial breach
of unalterable sterile procedure despite
the protests of an observing Nurse. The
obligation of the Hospital is to maintain
optimum conditions of sterility in the
course of fulfilling its obligation to
assure the well being of patients in its
care. This responsibility devolves upon
staff members such as Young who must be
held to strict
* The Arbitrator's construction of 19.7
a.l. is reenforced by 19.4 h -- "* The
Gisciplinary arbitrator's decision with
respect to guilt or innocence, penalty,
or probable cause for s:spension, or
temporary assignment, pursuant to Section
19,7. . . shall be final and binding upon
the parties, and the disciplinary
App. 96a
arbitrator may approve, disapprove or
take any other appropriate action
warranted under the circumstances,
including ordering reinstatement and back
pay for all or part of the period of
suspension, or return to his or her
assignment if temporarily reassigned. If
the disciplinary arbitrator, upon review,
finds probable cause for the suspension,
the arbitrator may consider such
suspension in determining the penalty to
be imposed. (Underscoring supplied.)
observance of prescribed procedures. The
offenses committed call for far more than a
reprimand as urged by UUP and, in the
Arbitrator's judgment, less than the ultimate
penalty of termination sought by the State.
Grievous as the conduct of Young was,
the infractions of February 8 constituted a
first time offense. His previous eight year
record of employment at the Hospital does not
disclose other examples of violations of
professional performance relating to his work
intrinsically and technically considered.
There are favorable indications.
After receiving “summary performance
appraisals~ of satisfactory for the period
November 7, 1980 through November 7, 1985,
and individual category ratings ranging from
App. 97a
good to excellent and outstanding, Young was
appointed to permanent status as a Technical
Specialist at the Hospital, effective April
18, 1986. In support of his application for
permanent appointment were letters from three
physicians who were familiar with Young and
his work at the Hospital. In recognition of
his outstanding work, he was granted
Giscretionary salary increases in the years
1981, 1982, 1983, 1985 and 1987. Young has
also been given the responsibility of
training a number of respiratory therapists
at the Hospital.
The Arbitrator considers that a penalty
commensurate with the gravity of the
wrongdoings* without, however maiming Young
* In its brief, the State cites language from
an arbitrator's opinion -- ‘lack of an
unfortunate result occurring does not
minimize the offense.' The State then
comments as to this proceeding -- "In this
case we might add lack of a ‘known'
unfortunate result. All we know is that
most of the patients died. nThe record is
App. 98a
barren of any reference to the survival or
non-survival of the patients herein let
alone linkage by innuendo to the failures
of Young.
permanently as a Respiratory Therapist such
as might very well be a likely consequence of
termination, constitutes the appropriate
measure. Such penalty, including a warning,
shall be a suspension without pay for eight
weeks to be realized out of the suspension in
effect from February 13 to the date of
reinstatement.
AWARD
1. State University of New York, Health
Science Center at Brooklyn, had probable
cause to suspend Respiratory Therapist
David Young effective February 13, 1988.
2. David Young is guilty of the charge as
specified in the Notice of Discipline
Gated February 19, 1988.
App. 99a
3. The penalty of termination proposed by
the State is not appropriate.
4. The penalty imposed upon David Young
shall be suspension without pay for eight
work weeks effective from February 13,
1988 to the termination of that eight work
week period. Within a reasonable time
after receipt of this Opinion and Award,
State University of New York, Health
Science Center at Brooklyn, shall restore
David Young to his former position of
Respiratory Therapist with back pay and
entitlements running from the expiration
of the period of suspension set forth
above to the date of reinstatement.
5. In effectuating 4, above there shall be
deducted from the amount of back pay, any
earnings David Young may have gained
through employment while under suspension,
the objective being to make Young whole
but not excessively whole for the period
from the termination of the suspension
directed in 4, above, to the date of
reinstatement.
6. David Young is directed to comply
with all official requests made of him
in connection with 4 and 5, above.
7. David Young is warned against any
further breach of professional
responsibilities.
S/JONAS SILVER, ARBITRATOR
STATE OF NEW YORK) ss.:COUNTY OF NASSAU )
App. 100a
On this 1ST day of September 1988,
before me personally came and appeared,
JONAS SILVER, to me known and known to me
to be the person described herein and who
executed the foregoing instrument and he
acknowledged to me that he executed the
same.
s/Jonas Silver
Judy A. Wells
Notary Public, State of New York
No. 01-4905817
Qualified in Nassau County
Commission Expires November 2, 1989
App. 101a
APPENDIX |
Portions of Collective Bargaining Agreement Between State
of New York and United University Professions, dated May
12, 1986
ARTICLE 19
19.1 Purpose - - :
The purpose of this Article is to provide a prompt, equitable and
efficient procedure for the imposition of discipline for just cause.
Both parties to this Agreement recognize the importance of
counseling and the principle of corrective discipline. Prior to
initiating formal disciplinary action pursuant to this Article. the
College President, or designee, is encouraged to resolve matters of
discipline informally; provided, however, such informal action
shall not be construed to be a part of the disciplinary procedure
contained in this Article and shall not restrict the right of the
College President, or designee, to consult with or otherwise
counsel employees regarding their conduct or to initiate
disciplinary action.
Definition.
a. "Disciplinc” shall be defined as the imposition of a penalty by
means of the procedure specified in Section 19.4.
b. "Days" shall mean working days. Monday
through Friday, cxcluding holidays.
c. "Service" shall mean the act of delivering, in accordance with
provisions of this Article a notice of discipline. Scrvice shall be
effective threc days from the timc of personal service or, in the
cvent of mailing, which shall be by ccrtificd or registercd mail,
rcturn reccipt requestcd, three days~ from the date the notice is
returned to the College President, or designee, undelivered.
d. Party" shall mcan the Statc and cithcr the employee upon
whom discipline is sought to be imposed or the cmploycc’s
representative sclectcd pursuant to Scction 19.8 of this Article.
App. 102a
~ 19.3 Applicability
Discipline shall bc imposed upon employccs only pursuant to this
Article; provided, howcvcr, that provisions of this Anicle shall
not apply. to the tcrmination of cmployces scrving on temporary
or probationary appointments, which may bce tcrminated at any
time in accordance with provisions of Article XI of the Policics,
and provided furthcr that provisions of this Article shall not apply
to nonrenewal of term appointments pursuant to Article XI of the
Policies. terminations of cmployees due to mental or physical
incapacity pursuant to Article XV of the Policies or termination of
employees pur~uant to Article 35, Retrenchment, of this
Agrcement.
App. 103a
Section 19.4 Disciplinary Procedure
a. Discipline shall bc imposed only for just cause. Where the
Collcce President, or dcsigncc. seeks to impose disciplinc, notice
of such disciplinc shall be made in writing and served upon the
cmployce in person or by registered or certified mail, rcturn
reccipt requested, to the employce's. address of record. The
conduct for which disciplinc is being imposed and the penalty
proposed, shall be specified in the notice. The notice served on the
cmployec .shall contain a detailed description of the alleged acts
and conduct including reference to dates, timcs and places.
b. The penalty proposcd may not be implemented until the
employee ( 1 ) fails to file a disciplinary grievance within 10 days
of service of the notice of disciplinc, or (2) having filed a
disciplinary gricvance, fails to file a timely appeal to disciplinary
arbitr~tion, or (3) having appealed to disciplinary arbitration, until
and to the cxtent that it is upheld by the disciplinary arbitrator, or
(4) until the matter is settled.
c. The notice of discipline may be the subject of a disciplinary
grievance which shall be filed with the Chancellor. or designee, in
person or by registered certified mail, return receipt requested, by
the employee. or the employec's represcntative, on a disciplinary
grievance form to be provided by the State within 10 days of the
date of service of notice of discipline. A copy of the notice of
discipline must be attached to the disciplinary grievance form. The
employee. or the employee's representative, shall be entitled to a
meeting to present the employee's position to the Chancellor, or
designee, within 10 days of the date of filing of the disciplinary
gricvance. The purpose of the meeting shall be the possible
adjustment of the matter and need not involve the presentation of
evidence or specifcation of particulars by either party. The
meeting provided for herein may be waived by the employee, in
writing, on the grievance form., only in accordance with
provisions of Section 19.7(b).. If the meeting has not been waived
but cannot be held within 10 working days of the date of filing of
the disciplinary grievance by reason of the unavailability of the
App. 104a
employee, or the employee's representative, or on such other date
as may be mutually agreed upon, the Cancellor, or designee, may,
at the option of the Chancellor, or designee, review the
disciplinary grievance on the basis of the existing record. The
Chancellor. or designee, shall provide the cmployee. or thc
cmployec's representative, with a rcsponsc in writing by registercd
or certified mail, return receipt requested, or by personal .scrvicc
within twenty days of the meeting or revicw, or within five days of
the mccting or rcvicw if the employce has bccn suspended without
pay under Section 19.7 of this Article.
d. If the disciplinary grievance is not scttled or othcrwisc
resolved, it may be appealed to disciplinary arbitration by the
employcc, or thc cmployee's rcpresentativc, within 10 days of
receipt ot thc response of the Chancellor, or designee. Notice of
appeal to disciplinary arbitration shall be filed by registercd or
certified mail, return receiipt requestcd. or by personal service
upon the Director of Employee Relations, or designee. A copy of
the appeal shall be sent simultaneously to the College President
and the Chancellor's designee.
e. The State and UJUP shall jointly agree within 15 days of the
execution of this Agrecment on a 25 member pancl of disciplinary
arbitrators. Each member of the panel shall be assigned a number
in rotation and. in the event of a disciplinary arbitration the first
arbitrator in order who is available to conduct a hcaring within 10
days of appointment shall serve as the arbitrator. The Statc agrees
to perrform activities necessary to appropriate admininistration of
the panel including but not limited to. identifying arbitrators
availability, notifying them of thcir appointment and assisting in
arranging for hcaring rooms.
f. The disciplinary arbitrator shall hold a hearing within 10 days
of appointment, or as sooon thereafter as practical. or within such
other period as may be mutually agreed upon by the parties,
recognizing, however. that except in unusual circumstances a
hearing should be concluded within 30 days of the appointment of
the arbitrator. The disciplinary arbitrator shall render a decision
within five days of the close of the hearing, or within five days
after receipt of the transcript. if either party elects a transcript, or
ai caer
App. 105a
within such other time as may be mutually agreed upon by the
parties.
g. Either party wishing a transcript of a disciplinary arbitration
hearing may provide for one at its expense and shall provide a
copy to the arbitrator and the other party; provided, however, the
decision to make a transcript must be announced at the beginning
of the hearing and the transcript must cover the entire hearing, not
just a portion thereof. Delays in the preparation of a transcript shall
not constitute a basis for delays in scheduling hearing dates.
h. The disciplinary arbitrator shall be confined to determinations
of guilt or innocence and the appropriateness of proposed
penalties. The disciplinary arbitrator may consider issues of
timeliness, including those arising pursuant to Section 19.9, but
shall not consider alleged violations of provisions of this
Agreement, which shall be subject only to the provisions of
Article 7, Grievance Procedure, of this Agreement. The
disciplinary arbitrator's decision shall neither add to, subtract from
nor modify the provisionsi of this Agreement. The disciplinary
arbitraltor's decision with respect to guilt or innocence, penalty. or
probable cause for suspension, or temporary reassignment,
pursuant to Section 19.7 of this Article. shall be final and binding
upon the parties and the disciplinary arbitrator may approve,
disapprove or take any other appropriate action warranted undcr
the circumstances, including ordering reinstatement and back pay
for all or part of the periodt of suspension, or return to hisi/her
assignment if temporarily reassigned. If the disciplinary arbitrator,
upon revicw, finds probable cause for the suspension, the arbitrator
may consider such .suspcnsion in determining the penalty to be
imposed.
i. All fecs and expenses of the arbitrator, if any, shall be divided
equally between the Statc and UUP or the employee if not
represcntcd by UUP. Each party shall bear the cost of preparing
and prescnting its own case. The estimated arbitrator's fee and
expense~ and estimated expense of the arbitration may be
collected in advance of the hearing.
19.5 Settlements
a. A disciplinary grievance may bc settled at any time following
the service of a notice of discipline. The terms of the scttlement
App. 106a
shall bc reduccd to writing on the disciplinary grievance form to
be provided by the State. An employee offered such a settlement
shall be offered a reasonable opportunity to have a representative
present before the employee is required to execute it.
19.6 Effect of Settlement and Arbitrator's Award
a. All settlements and arbitrators' awards shall be final and binding
upon the State, UUP, the employee and the employee's
representative if other than UUP.
19.7 Suspension Before Notice of Discipline
a. Prior to issuing a notice of discipline or the completion of the
disciplinary grievance procedure provided for in this Article, an
employee may be suspended, without pay, by the appointing
authorityonly pursuant to paragraphs (1) or (2) of this Section. As
an alternative to such suspension, the employee may be
temporarily reassigned.
1. The appointing authority, or its designee may suspend, without
pay or temporarily reassign anemployee when the appointing
authority, or its designee, determines that there is probable cause
that such employee's continued presence on the job represents a
potential danger to persons or property-or would severely interfere
with its operations. Such determination shall be reviewable by the
disciplinary
arbitrator: A notice of discipline shall be served no later than five
days following any such suspension or temporary reassignment.
2. The appointing authority, or its deslgnee, may suspend
without pay or temporarily reassign an employee charged with
the commission of a crime. Such employee shall notify the
appointing authority in writing of the disposition of any
criminal charge including a certified copy of such disposition
within five days thereof. Within 30 calendar days following
such suspension under this paragraph, or within five days
from receipt by of notice of disposition of the charge from the
employee, whichever occurs first, a notice of discipline shall
be served on such employee or the employeeshall be
reinstated with back pay if suspended orreturned to his/her
assignment if temporarily reassigned. Nothing in this
paragraph shall limit the right of the appointing authority, or
App. 107a
its designee, to take disciplinary action during the pendency of
criminal proceedings.
3. Where the appointing authority, or its designee, elects to
temporarily reassign an employee pursuant to this Article, the
employee shall be notified in writing of the location, the effective
date and nature of such temporary reassignment and that the em-
ployee may elect in writing to refuse such temporary reassignment
and may be suspended without pay. The employee's election must
be made in writing before commencement of the temporary
reassignment. Ar election by the employee to refuse such
temporary
reassignment is final and may not thereafter be withdrawn. No
election by the employee is permitted once the employee
commences the temporary reassignment.
4 - The fact that the appointing authority, its designee, has
temporarily reassigned an employee rather than suspending the
employee without pay shall not be considered by the disciplinary
arbitrator for any purpose.
b. Where an employee has been suspended without pay or
temporarily reassigned pursuant to this article, the employee
may, in writing, waive the meeting with the Chancellor, or
designee, at the time of filing a disciplinary grievance. In the
event of .such waiver, the employee shall file the disciplinary
grievance form, within the prescribed time limits for filing a
grievance with the Chancellor. or designee directly with the
Director of Employee Relations, or designee. in accordance
with the provisions of Section 19.4(d).
19.8 Represention
a. An employee may represent himself/hersclf or be
accompanied for purposes of representation by UUP or
counsel at any stage of the disciplinary procedure contained in
this Article; provided, howcvcr, an cmployee's represcntative
may only act on
thc employee's. behalf, in the absence of thc employee upon
mutual agrecment of the partics.
19.9 Limitation
App. 108a
An employee shall not be disciplined for acts,except those
which would constitute a crime, which,occurred more than
one year prior to the service of the notice of discipline. The
employee's whole record of cmployment, however, may be
considered with respect to the appropriateness of the penalty
to be imposed, if any.
19.10 Miscellaneous Provisions
a. Mailing- 1. All grievances, grievance appeal; and responses
shall be transmitted by certificd or registered mail, return receipt
requested or by personal service on the grievant or his or her
representative or on the individual responsible for conducting the
review. Upon personal service the recipient of such documents.
upon request. shall acknowledge, in writing,the receipt thereof.
Proof of personal service shall specify the person who was served
and the date, place and manner of service.
2. All time limits set forth in this Article shall be measured from
the date of receipt. Where service is by registercd or certificd mail.
the date of receipt shall be that datc appearing on thc return
receipt,provided however, that ihe time limits for the submission
of a grievance or the filing of an appeal or demand for arbitration
or issuance of a step response shall be determined from the date of
personal service or mailing by certified or registered mail, return
receipt requested, as evidenced by the official postmark appearing
on the receipt for certified or registered mail.
KKK
Section 50.1 This Agreement shall be effective on the date it is
signed by the parties, but not earlier than July 1, 1985 and shall
continue through June 30, 1988 except as specified otherwise in
the Agreement or by mutual agreement of the parties.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.