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: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02887.htm
.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com