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August 27, 2015

Advisory arbitration


Advisory arbitration
Hannon v Westbury Union Free Sch. Dist. Bd. of Educ., 2015 NY Slip Op 06668, Appellate Division, Second Department

“Advisory Arbitration”is typically viewed as a form of arbitration in which the decision of the arbitrator is in the nature of recommendations or advice and not binding on the parties.

As the Hannon decision demonstrates, although the opinion of the arbitrator in advisory arbitration is not binding on the parties, the parties may have obligated themselves “to consider the arbitrator’s opinion” in the course of the “decision making process” where the collective bargaining agreement [CBO] so requires and the failure to do so would constitute a “contract violation” of the CBO.

The Westbury Union Free School District Board of Education [Westbury] terminated Kevin Hannon from his position following an advisory arbitration proceeding in which the arbitrator considered Hannon's grievance. Hannon sued, contending Westbury violated the CBO in determining the disposition of his grievance. Supreme Court, Nassau County, agreed and granted Hannon’s Article 78 petition. The court directed Westbury to reinstate Hannon to his former position with back pay.  Westbury appealed the Supreme Court’s ruling.*

The Appellate Division sustained the lower court’s decision, explaining that Westbury’s determination to reject the advisory arbitration award was arbitrary and capricious as the relevant CBO between Westbury and the United Public Service Employees Union required the parties "to consider the opinion" of the arbitrator "in determining the final disposition of the grievance under review."

Citing Plainedge Federation. of Teachers v Plainedge Union Free School District, 58 NY2d 902,  the Appellate Division said that as there was no evidence in the record demonstrating that Westbury had, in fact, consider the opinion of the arbitrator when it made its decision to terminate Hannon’s employment, it was “in violation of the plain terms of the collective bargaining agreement.”

* Supreme Court had also awarded a second petitioner, Carlos Brugueras, back pay from the date that he was laid off from his position until his discharge from employment by Westbury.

The decision is posted on the Internet at:

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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.
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