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.
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The petitioner [Employer] issued a notice of personnel action seeking the termination of the services of Employee, who had been employed for several years, for alleged misconduct and, or, incompetence. Employee's union, the Civil Service Employees Association, Inc., A.F.S.C.M.E., Local 1000, A.F.L.-C.I.O., by its Local 830 [CSEA], commenced an arbitration proceeding challenging Employee's termination.
The arbitrator found, among other things, that Employee "committed misconduct and/or incompetency" but reduced the penalty imposed from termination of employment to suspension without pay, with loss of time served, which equated to an unpaid suspension of approximately 15 months, and directed the Employee's return to his employment. Employer then commenced a proceeding pursuant to CPLR Article 75 to modify or vacate the arbitration award.
Supreme Court determined that Employee's termination was warranted and proper and that Employer was not obligated to return Employee to his employment. CSEA and Employee appealed the Supreme Court's ruling.
The Appellate Division, observing that "Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management," opined that when the parties agree to submit their dispute to an arbitrator courts generally play a limited role".
In the words of the Appellate Division, [numerous court citations omitted]:
1. "An application to vacate an arbitration award may be granted only in narrow circumstances, including where "an arbitrator . . . exceeded his [or her] power" (CPLR 7511[b][1][iii]);
2. "Such an excess of power occurs only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power";
3. "The scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow, existing only where a court concludes that there are strong and well-defined policy considerations embodied in constitutional, statutory, or common law that the final result creates an explicit conflict";
4. "The burden is on the movant to establish grounds for vacatur by clear and convincing evidence";
5. "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies;
6. "A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice"; and
7. "An arbitration award must be upheld when the arbitrator offers even a barely colorable justification for the outcome reached".
The Appellate Division opined that Employer failed to demonstrate by clear and convincing evidence that the arbitration award should have been vacated on the ground that the arbitrator exceeded his power noting that "Contrary to the Supreme Court's determination, the arbitrator properly declined to consider evidence of misconduct that occurred, before certain dates, explaining that the collective bargaining agreement [CBA] governing this dispute provided that "[f]or any incompetence or misconduct alleged to have occurred on or after January 1, 1995, . . . no discipline may be imposed more than one (1) calendar year after such occurrence unless said incompetence or misconduct would, if proved in a court of competent jurisdiction, constitute a crime."
None of Employee's misconduct or incompetence was alleged to have been criminal or to have prevented the Employer from timely bringing charges. Accordingly, the Appellate Division concluded that arbitrator properly adhered to the CBA by disregarding evidence of misconduct that occurred outside the limitation period.
The Appellate Division then noted that Employer "failed to identify any public policy, statute, or regulation that required the termination of [Employee's] employment rather than a lengthy suspension.
Finding the Supreme Court should have denied the Employer's petition, the Appellate Division reinstated the arbitration award and remit the matter to the Supreme Court for the entry of an appropriate judgment (citing CPLR 7511[e]; 7514[a]).
Click HERE to access the Appellate Division's decision posted on the Internet.
An employee [Plaintiff] serving with a New York State agency [Employer] was served with a notice of discipline seeking to terminate Plaintiff's employment with the Employer based on 11 charges of misconduct and insubordination. Plaintiff, represented by his Union, filed a grievance. Ultimately the matter was submitted to arbitration.
The Arbitrator determined that the Employer followed the procedures mandated by the relevant collective bargaining agreement with respect to the issuance of a notice of discipline, rejected Plaintiff's challenge to the Employer's service of the notice of discipline as untimely, determined that termination of Plaintiff's employment was the appropriate disciplinary penalty under the circumstances, and denied Plaintiff's grievance.
Plaintiff then commenced the instant proceeding pursuant to CPLR Article 75 seeking a court order vacating the arbitration award. Supreme Court, among other things, denied the Plaintiff's petition and dismissed the proceeding. Plaintiff appealed.
The Appellate Division, noting that "Judicial review of arbitration awards is extremely limited", observed that "It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing a number New York State court decisions including Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, and Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, ALF-CIO, 6 NY3d 332.
In addition, the Appellate Division said "contrary to the [Plaintiff's] contention, he failed to demonstrate that the arbitration award violated a strong public policy, was irrational, or clearly exceeded a specifically enumerated limitation of the arbitrator's power and failed to present evidentiary proof of actual bias or the appearance of bias on the part of the arbitrator, and said "the award discloses no bias".
Addressing the penalty imposed on Plaintiff, termination, the Applellate Division, citing Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065, opined that "the penalty of termination was not so disproportionate to the offenses charged as to be shocking to one's sense of fairness."
Click HERE to access the Appellate Division's decision posted on the Internet.