In re the Arbitration between New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO & State

OPINION OF THE COURT Crew III, J. Petitioner Edward Kuhnel, a correction officer employed by respondent Department of Correctional Services (hereinafter DOCS) at Eastern Correctional Facility in Ulster County, was suspended without pay on December 12, 1996 for flying a Nazi flag from the front porch of his home in the Town of Marble-town, Ulster County. The notice of discipline charged Kuhnel with violating those sections of the employee manual providing that “[n]o employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or [i]ts personnel” and, further, directing that “[a]n employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee”. The notice of discipline advised Kuhnel that “[b]y the display of this racist symbol you have brought discredit to [DOCS] and your fellow employees. In addition your actions have endangered the safety and security of all facilities in [DOCS]”. Pursuant to the grievance procedure outlined in the collective bargaining agreement between petitioner New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO and respondent State of New York, Kuhnel’s suspension was submitted to arbitration. In an opinion dated June 20, 1997, the arbitrator found that while the State had probable cause to suspend Kuhnel pursuant to the collective bargaining agreement, he was not guilty of the charges contained in the notice of discipline and, accordingly, the arbitrator ordered [56] that Kuhnel be reinstated to his position with full back pay and benefits. Thereafter, petitioners commenced this CPLR article 75 proceeding to confirm the award, and respondents cross-petitioned to vacate the award upon the ground that it was irrational and violative of public policy. Supreme Court granted petitioners’ application and denied the cross petition, prompting this appeal by respondents. As a starting point, we find no merit to respondents’ contention that the arbitrator’s award is totally irrational. Given the factual findings that Kuhnel’s conduct neither harmed DOCS’ business, adversely affected Kuhnel’s ability to perform his job1 nor led other employees to refuse to work, we cannot conclude that the award was totally irrational. That being the case, our inquiry distills to whether the underlying arbitration or the award resulting therefrom was violative of a strong public policy (see, e.g., Matter of Town of Callicoon [Civil Serv. Empls. Assn., Inc., Town of Callicoon Unit], 70 NY2d 907, 909). To answer such inquiry in the affirmative, this Court “must be able to examine [the] arbitration agreement or [the] award on its face, without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Stated another way, vacatur of the underlying award requires this court to conclude that the agreement or the award itself “directly conflicts with * * * a strong public policy ‘ “amounting to gross illegality or its equivalent”, generally to be found in a “readily identifiable source in the statutes or common-law principles” ’ ” (Matter of Fallon [Greater Johnstown School Dist.], 118 AD2d 936, 937, lv denied 68 NY2d 603, quoting Matter of Board of Educ. [McGinnis], 100 AD2d 330, 333, quoting Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 422 [Breitel, Ch. J., concurring]). As “arguably every controversy has at its core some issue requiring the application, or weighing, of policy considerations”, we must take care to exercise due restraint and avoid, under the guise of public policy, invading the province of the arbitrator and resolving the underlying dispute on the merits (Matter of Sprinzen [Nomberg], supra, at 630, 633). Applying these principles to the matter before us, we are of the view that respondents have failed to demonstrate either [57] that the disciplinary charges brought against Kuhnel were not properly the subject of arbitration or that the public policy of this State, as embodied in a readily identifiable source in our statutes or decisional law, prohibits, in an absolute sense, the presence within our prison system of those that display the Nazi flag, or any other flag that may be seen as symbolizing bigotry, racism or totalitarianism. Accordingly, we are constrained to affirm. Initially, there does not appear to be any dispute that the underlying disciplinary grievance was the proper subject of arbitration. The collective bargaining agreement provides that arbitration is the exclusive procedure for resolving disciplinary matters and makes clear, pursuant to section 8.2 (h), that “[t]he disciplinary arbitrator’s decision with respect to guilt or innocence, penalty, or probable cause for suspension * * * shall be final and binding upon the parties”. As to the relief awarded here, reinstatement with back pay is expressly authorized under the parties’ agreement. Nor are we persuaded, for the reasons that follow, that a disciplinary proceeding brought by an administrative agency against a public employee who speaks on a matter of public concern involves the type of determination that, due to the existence of a strong public policy, must be resolved in a judicial forum (compare, Matter of Fallon [Greater Johnstown School Dist.], supra). Accordingly, we find no basis upon which to conclude that the underlying arbitration agreement — on its face — violates public policy. Turning to the propriety of the award itself, which directs that Kuhnel be reinstated to his former position as a correction officer with full back pay and benefits, we understand respondents’ reluctance to return a purported racist to his former employment within the prison system. However, Kuhnel’s conduct, offensive as it may be, is not, standing alone, sufficient to sustain respondents’ asserted public policy violation. Simply stated, none of the authorities cited by respondents demonstrate that the statutory or decisional law of this State precludes, in an absolute sense, the presence within our prison system of those who embrace bigoted views as evidenced by their public speech. Indeed, to adopt such a policy would, in our view, run counter to the principles enunciated in Waters v Churchill (511 US 661) and Jeffries v Harleston (52 F3d 9, cert denied 516 US 862), which instruct that a restriction upon an employee’s speech can be justified only where the employer can show that its interest in effectively performing a public service outweighs the employee’s 1st Amendment right to comment [58] upon a matter of public concern. To that end, although the employer need not demonstrate actual disruption , of the work place, it must establish a reasonable prediction thereof.2 Here, after performing just such a balancing test, the arbitrator specifically found that DOCS had failed to factually demonstrate any actual harm to its business and, further, that its prediction of disruption was unfounded and, in some instances, entirely speculative. In urging this Court to reach a contrary conclusion, respondents and our dissenting colleagues would have us do precisely what the Court of Appeals has instructed us not to do — namely, invoke public policy considerations as a basis for usurping the role of the arbitrator and resolving the underlying dispute on the merits. Even accepting, as the dissent posits, that the public policy of this State prohibits the employment of an alleged racist within its prison system, one simply cannot apply the balancing test set forth in Waters v Churchill (supra) and Jeffries v Harleston (supra) and reach the result urged by respondents and the dissent without invading the province of the arbitrator and weighing and evaluating the evidence placed before him. As it is not the function of this Court to “second-guess” the factual findings made or legal conclusions reached by the arbitrator (Matter of Sprinzen [Nomberg], supra, at 632), we have little choice but to affirm Supreme Court’s order confirming the arbitrator’s award. Footnotes [1] Notably, all of Kuhnel’s job evaluations since 1981, with the exception of the 1984-1985 evaluation, were either excellent or outstanding. [2] Indeed, we have had occasion to apply such a balancing test when dealing with the constitutional right of freedom of association (see, Curle v Ward, 59 AD2d 286, mod 46 NY2d 1049 [correction officer suspected of membership in Ku Klux Klan could not be dismissed from employment absent proof that such membership threatened the State’s interest]).