The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration

The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405

Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.

The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.

In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.

The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.

The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.

The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.

Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.

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