The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration

The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405

Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.

The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.

In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.

The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.

The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.

The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.

Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.

======================
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
=======================
.

Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement

Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department

The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.

The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”

The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.

Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.

The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”

The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm

=======================

General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.

========================
.

Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle

Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Taxi & Limousine Commission v Alvarez, OATH Index # 924/11

OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.

Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).

The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”

As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:

Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:

• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;

• Operated the vehicle inattentively, including failure to exercise defensive driving skills;

Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
.