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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

August 22, 1991

Reduction of the penalty imposed by an arbitrator

Reduction of the penalty imposed by an arbitrator
Town of Rotterdam v CSEA, Supreme Court, Schenectady County, Docket #96-1117, not selected for publication in the Official Reports

An arbitrator determined that although Erich Kaiser, an highway equipment operator, was guilty of insubordination, the penalty of termination was excessive and inappropriate. He directed that Kaiser be reinstated and that a  "period of suspension without pay, a six-month period of probation and loss of seniority for the suspension period be substituted as the appropriate penalty.

The Town objected and asked the Court to vacate the arbitrator's award. The Court denied the Town's application.

The Court said that "Court of Appeals cases teach that in order for a substantive contract provision to limit the remedial power of an arbitrator, it must be clearly incorporated by reference into the arbitration agreement." Finding that there was no such limitation in the controlling negotiated agreement, Justice Vito C. Caruso upheld the arbitrator's determination.

On another point, the Court said that the fact that the arbitrator may have applied the wrong legal standard in reviewing the discipline imposed is of no consequence. Citing Rochester City School District v Rochester Teachers Association, 41 NY2d 578, Justice Caruso said "the courts may not set aside an award because they feel that the arbitrator's interpretation disregards the apparent, or even the plain, meaning of the words or resulted from a misapplication of settled legal principles."

August 12, 1991

Exclusive unit work assignment

CSEA Erie County Local 815 filed improper practice charges against the County after the County reassigned supervisory duties being performed exclusively by unit members to non-unit personnel.

In making its determination, PERB made a number of observations regarding the factors it considers material in determining whether exclusive unit work has been improperly transferred or reassigned:

a. The nature of duties actually performed, not the duties which might  have been performed or could have been performed.

b. The frequency with which non-unit personnel were called up to perform exclusive work, because "occasional or incidental performance of unit work by nonunit personnel does not deprive unit employees of 'exclusivity.'"

c. Whether the performance of the same or similar duties by both unit and nonunit personnel "prevents any employees from having exclusivity over the work at issue." [In other words, if both groups perform essentially similar tasks, neither can claim "exclusivity."]

d. Whether there is a history that unit employees "had been solely responsible" for the work claimed to be "exclusive" for many years, because this is evidence of exclusivity.

PERB concluded that the County had violated §209-a.1 of the Act and provided the following relief:

a. The County was directed to restore the challenged duties to unit members.

b.  CSEA unit employees who lost wages or benefits as a result of the County's reassignment of duties to nonunit personnel were to be "made whole."

The decision, 30 PERB 3017 decided March 26, 1997, is posted on the Internet at:

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