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April 13, 2011

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify
In the Matter of Saderia Burke v Nassau Health Care Corporation, 2011 NY Slip Op 02887, Appellate Division, Second Department

This decision addressed two proceedings involving Saderia Burke’s arbitration award. Burke, a member of the Civil Service Employees Association, Inc.

In the course of a disciplinary proceeding Burke and the Nassau Health Care Corporation entered into a "Consent Award" that was "so-ordered" by the arbitrator. The Award provided that Burke would be terminated if she committed certain disciplinary infractions within an agreed period.

Subsequently Health Care served a “notice of termination” on Burke after she allegedly committed “certain infractions.” CSEA filed another grievance and demand for arbitration.

After this second hearing, the arbitrator found that Burke, indeed, had committed infractions that would result in termination in accordance with the Consent Award. The arbitrator, however, issued an award imposing a penalty of suspension rather than termination.

Health Care filed an Article 75 petition seeking to vacate the award while CSEA filed an Article 75 petition seeking to confirm the award.

Supreme Court denied Health Care’s petition, granting so much of the arbitration award as imposed a penalty of suspension without pay on Burke.

The Appellate Division reversed the Supreme Court’s decision, and vacated the penalty of suspension without pay awarded by the arbitrator, explaining that courts may vacate an arbitration award if the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of Falzone, 15 NY3d 530.

An arbitrator, said the court, may properly modify a prior arbitration award only to:

1. Correct a miscalculation or mistaken description in the prior award:

2. To correct so much of the prior award as was rendered on a matter not submitted to the arbitrator and which can be corrected without affecting the merits of the decision; or

3. To correct a prior award that is "imperfect in a matter of form."

In this instance the Appellate Division found that the arbitrator had exceeded his authority by determining an issue “not submitted to him.” Further, he ruled on an issue had been resolved via a “consent award” in a prior arbitration involving Burke, the penalty to be imposed for any other “certain” disciplinary infraction.

In view of this, ruled the Appellate Division, Supreme Court should have modified so much of the arbitrator's award as imposed a penalty of suspension without pay and reinstated the penalty of termination.

The decision is posted on the Internet at:


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