Arbitration award challenged in a CPLR Article 75 proceeding confirmed

The Appellate Division unanimously reversed a Supreme Court's decision granting Plaintiff's petition challenging an arbitration award and remanding the matter for a new hearing before a different arbitrator. The court then reinstated initial arbitrator's determination and penalty imposed "on the law".

The Plaintiff in the instance action was the subject of a prior disciplinary action involving charges of violating his employer's attendance rules. These charges were resolved by a written stipulation and agreement. The stipulation provided that [1] the charges were sustained; [2] that the Plaintiff would accept a "30 day suspension";  [3] agreement constituted a final warning "on time and attendance violations" and [4] the authority of the arbitrator adjudicating "any time and leave violations occurring within eighteen (18) months of the [date of the] stipulation," would be "limited to review of the charged misconduct, which if sustained would result in dismissal."

Prior to the expiration of this 18 month period Plaintiff was charged with [1] failing to report to work for 12 days and [2] abandonment of his position, in violation of his employer's Time and Leave Rules, which require that employees obtain prior approval for all leaves of absence, "except for such emergencies as death in immediate family and other substantiated unforeseeable occurrences."*

At the hearing which followed the Plaintiff testified that he was absent to care for his daughter who is bipolar and had  attempted suicide on previous occasions.

However, the arbitrator found that the documents offered by the Plaintiff in justification of his absences consisted of [1] a note signed by a physician indicating  that the Plaintiff's daughter sought treatment at an urgent care on the dates of Plaintiff's absence; and [2] did not include a diagnosis or any specific supervision or treatment recommendations other than Plaintiff's daughter should "refrain from going to work and school for a certain number of days."

This, said the arbitrator, neither serve to substantiate the level of care Plaintiff's daughter required nor that she needed his constant presence.

The Appellate Division held that under these circumstances, "there was a plausible basis for the arbitrator's finding that Plaintiff's] excuse for his prolonged absence without prior approval was not sufficiently substantiated, despite the challenging circumstances presented by his daughter's mental health."

* Although Plaintiff "called in" to report he would be absent from work each day, he did not obtain prior approval for any of these absences.

Click HEREto access the text of Appellate Division's ruling.