Tuesday, April 17, 2012

Some procedural defects that bar the vacating of the arbitrator’s award


Some procedural defects that bar the vacating of the arbitrator’s award
Beals v New York City Transit Authority, 2012 NY Slip Op 02784, Appellate Division, First Department

The Beals decision by the Appellate Division, First Department, sets out a number of procedural defects that defeated the employee’s efforts to vacate an adverse arbitration award.

First, said the Appellate Division, the arbitrator “properly declined” to apply the collective bargaining agreement's statute of limitations for filing disciplinary charges as, pursuant to its terms, the statute of limitations did not commence to run while an investigation of the conduct leading to the disciplinary charges against employee was under way. Further, said the court, “any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award.”

Other procedural defects noted by the Appellate Division barring granting the employee’s petition seeking to the vacate the award in this instance included:

1. An individual waives his or her claims that the arbitrator should have enforced his or her witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration;

2. An arbitrator's erroneous evidentiary rulings with may support vacatur only if the evidence would have been pertinent and material; and

3. The employee’s failure to cite any provision in the collective bargaining agreement to support his or her contention that the arbitrator exceeded a restriction on his or her power.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02784.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these 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. 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 DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

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 in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.