Plummer v. Klepak — 48 N.Y.2d 486

Majority

p. 486

In the Matter of Lloyd Plummer, Respondent, v Daniel Klepak, as Chairman of the New York State Drug Abuse Control Commission, et al., Appellants.

Argued October 9, 1979;

decided November 27, 1979

p. 487

POINTS OF COUNSEL

Robert Abrams, Attorney-General (William J. Kogan, George D. Zuckerman and Emanuel M. Kay of counsel), for appellants.

I. Petitioner failed to timely pursue his administrative remedies and is thereby barred from relief under article 78. (Young Men’s Christian Assn. v Rochester Pure Waters Dish, 37 NY2d 371 ; Slater v Gallman, 38 NY2d 1 ; Matter of Flemming v Cagliostro, 53 AD2d 187 , 40 NY2d 806 ; Merante v Burns, 47 AD2d 671 ; Matter of Womer v Trustees of Univ. of State of N. Y., 47 AD2d 572 ; Matter of Roberts v County Ct. of Wyoming County, 39 AD2d 246 ; Matter of McGirr v Division of Veterans Affairs, Executive Dept., State of N. Y., 43 NY2d 635 .) II. The court below erred in not viewing petitioner’s prolonged absence as a voluntary resignation. (Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y., 41 NY2d 1061 ; Laba v Carey, 29 NY2d

p. 488

302 ; Matter of Flemming v Cagliostro, 53 AD2d 187 , 40 NY2d 806 ; Antinore v State of New York, 49 AD2d 6 , 40 NY2d 921 .)

Joe Field for respondent.

I. Appellants’ action deeming petitioner’s unexplained absence a voluntary resignation constituted discipline. (Board of Regents v Roth, 408 US 564 ; Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y., 52 AD2d 357 , 41 NY2d 1061 ; Matter of Dain v City Cent. School Dist. of Port Jervis, 57 AD2d 622 , 46 NY2d 757 ; Matter of McGirr v Division of Veterans Affairs, Executive Dept., State of N. Y., 56 AD2d 653 , 43 NY2d 635 ; Matter of Bernstein v Industrial Comr. of State of N. Y., 59 AD2d 678 ; Matter of Cooperman v Commissioner of Dept., of Correctional Servs. of State of N. Y., 57 AD2d 989 .) II. Appellants before terminating petitioner’s employment because of alleged prolonged unexplained absence were obligated to invoke the agreed upon disciplinary procedure set forth in the agreement —to wit — article 8. . (Matter of Flemming v Cagliostro, 53 AD2d 187 , 40 NY2d 806 .) III. Petitioner was not barred from seeking relief from appellants’ action in terminating him by bringing the instant proceeding pursuant to CPLR article 78. (Matter of McGirr v Division of Veteran Affairs, Executive Dept., State of N. Y., 43 NY2d 635 .)

OPINION OF THE COURT

Petitioner, a narcotic control officer with the respondent New York State Drug Abuse Control Commission, was informed by letter dated October 7, 1975, that he had been on unauthorized leave from his employment since September 16, 1975. The letter stated further that this unexplained absence constituted a resignation under both subdivision (d) of section 5.3 of the Rules and Regulations of the Department of Civil Service (former 4 NYCRR 5.3 [d] [repealed Feb. 27, 1979]) and article 15.10 of the collective bargaining agreement between the State and petitioner’s union.

Thereafter, on November 5, 1975, petitioner filed a grievance pursuant to article 7 of the collective bargaining agreement ("Grievance and Arbitration”). This grievance was rejected ultimately as untimely inasmuch as it had not been presented within 10 days of the date petitioner first knew of his termination, as was required by the express terms of that article.

p. 489

The instant proceeding was thereafter commenced pursuant to CPLR article 78. Special Term held that the termination was contrary to law, granted the petition and ordered respondents to reinstate petitioner to his former position, with back pay and interest retroactive to the date of his termination of employment, less compensation earned in other employment and unemployment benefits received since the date of termination, along with all other emoluments of employment. The Appellate Division unanimously affirmed. There should be a reversal.

Initially, we address the conclusions reached by the Appellate Division that petitioner’s resignation was disciplinary in nature and that respondents were obliged to invoke the notice and hearing procedures outlined in article 8 of the collective bargaining agreement ("Discipline”). This characterization of petitioner’s termination as "disciplinary” is at variance with the terms of the collective bargaining agreement in which the parties agreed that an unauthorized and unexplained absence for 10 consecutive workdays would be deemed a resignation. In our opinion, this dispute between the parties concerned the application of provisions of the agreement. Thus, it was incumbent upon petitioner to file a grievance within 10 days of the date he first learned of his termination as mandated by article 7 of the agreement. (See Matter of Flemming v Cagliostro, 53 AD2d 187 , mot for lv to app den 40 NY2d 806 .) This, he did not do.

Since petitioner failed to avail himself of the grievance procedure set forth in the collective bargaining agreement, he is precluded from seeking relief under CPLR article 78. (See, e.g., Matter of Flemming v Cagliostro, 53 AD2d, at p 189, supra; Merante v Burns, 47 AD2d 671 ; see, also, Slater v Gallman, 38 NY2d 1 .)

Petitioner, having designated the union as his collective bargaining agent, is bound by the terms of the agreement negotiated for and made on his behalf. (Schacht v City of New York, 39 NY2d 28 , 32.) The collective bargaining agreement expressly provides that an unauthorized absence for 10 consecutive workdays would be deemed to constitute a resignation. The bargain having been struck and the parties having agreed to a procedure for the resolution of disputes involving this provision, petitioner should not now be heard to complain, having failed to avail himself of the administrative remedies

p. 490

outlined in the collective bargaining agreement. (See Matter of Flemming v Cagliostro, 53 AD2d 187 , supra.)

Nor is our holding today in conflict with our prior decision in Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y. ( 41 NY2d 1061 ). Although in Johnson we held that subdivision (d) of section 5.3 of the Rules and Regulations of the Department of Civil Service (former 4 NYCRR 5.3 [d]) was invalid since its provisions were in conflict with section 75 of the Civil Service Law, we did not reach the further issue — presented by this appeal — whether a parallel provision embodied in a collective bargaining agreement would also be void.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

Cases cited

Young Men's Christian Ass'n v. Rochester Pure Waters District 37 NY2d 371 N.Y. 1975-07-02 p. 487
Slater v. Gallman 38 NY2d 1 N.Y. 1975-11-20 p. 487, p. 489
Flemming v. Cagliostro 53 AD2d 187 N.Y. App. Div. 1976-07-15 p. 487, p. 488, p. 489, p. 490
Roberts v. County Court of Wyoming County 39 AD2d 246 N.Y. App. Div. 1972-06-29 p. 487
McGirr v. Division of Veterans Affairs 43 NY2d 635 N.Y. 1978-02-22 p. 487, p. 488
Antinore v. State 49 AD2d 6 N.Y. App. Div. 1975-07-18 p. 488
Antinore v. State 40 NY2d 921 N.Y. 1976-11-16 p. 488
Board of Regents of State Colleges v. Roth 408 US 564 SCOTUS 1972-06-29 p. 488
Johnson v. Director, Downstate Medical Center 52 AD2d 357 N.Y. App. Div. 1976-06-01 p. 488
Dain v. City Central School District 57 AD2d 622 N.Y. App. Div. 1977-04-25 p. 488
Dain v. City Central School District of Port Jervis 46 NY2d 757 N.Y. 1978-12-07 p. 488
Cooperman v. Commissioner, Department of Correctional Services 57 AD2d 989 N.Y. App. Div. 1977-05-12 p. 488
Schacht v. City of New York 39 NY2d 28 N.Y. 1976-02-19 at 32 p. 489