Arbitrator’s award based on a finding of “past practice” did not modify the collective bargaining agreement between the parties

Arbitrator’s award based on a finding of “past practice” did not modify the collective bargaining agreement between the parties
Matter of Romaine v New York City Tr. Auth., 2011 NY Slip Op 02015, Appellate Division, Second Department

The Appellate Division affirmed a Supreme Court decision confirming an arbitration award, noting that “An arbitration award rendered after a consensual arbitration may be vacated by a court only on the grounds set forth in CPLR 7511(b).*

The court ruled that the arbitrator had not modified the relevant collective bargaining agreement [CBA] by relying on “past practices” to determine that the New York City Transit Authority was required to assign "shuttle work" to volunteers on its overtime list.

The arbitrator essentially determined that a mutual agreement had developed between the parties with respect to “shuttle work” over the past 20 years, which was an integral part of the collective bargaining agreement and “did not negate or bypass an express provision of the CBA.”

The Appellate Division also rejected the Transit Authority’s argument that the arbitration award “violates a strong public policy,” commenting that "[T]he scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow."

Here, said the court, the Authority failed to show that the "court can conclude without engaging in any extended fact-finding or legal analysis that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that the award itself violates a well-defined law of this State.”

* The Appellate Division also noted that “A court may vacate an arbitration award on the ground that the arbitrator "exceeded his [or her] powers" within the meaning of CPLR 7511(b)(1)(iii) "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."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02015.htm
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Employee found guilty of providing sensitive information about a narcotics investigation dismissed from her position with the police department

Employee found guilty of providing sensitive information about a narcotics investigation dismissed from her position with the police department
Matter of Villar v Kelly, 2011 NY Slip Op 02058, Appellate Division, First Department

The New York City Commissioner of Police dismissed Maria Villar from her position after finding that she had “wrongfully discussed and divulged official department business” involving sensitive information concerning an investigation.

The Appellate Division sustained the Commissioner’s determination and the penalty imposed. The court found that the decision to dismiss Villar was supported by substantial evidence.

The court noted that “Given the risk to the general public arising from the passing of sensitive information about a narcotics case to another subject of the same ongoing narcotics investigation, the penalty of dismissal does not shock our sense of fairness.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02058.htm
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Legislative immunity bars unlawful discrimination lawsuit

Legislative immunity bars unlawful discrimination lawsuit
Almonte v. City of Long Beach, 478 F. 3d 10

In a civil rights and wrongful discharge case based on the members of the City of Long Beach’s city council voting to eliminate the funding for a number of positions, a federal district court rejected Long Beach’s motion to dismiss the complaint.

The Federal Circuit Court of Appeals, Second Circuit, reversed the lower court’s decision.

The Circuit Court said that Legislative immunity applies not only to the council members' budget vote to eliminate funding the positions in question, but also to any discussions and agreements members may have had regarding the new budget prior to the vote, regardless of whether those discussions and agreements took place in secret.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/united-states-cour-t-of-appeals-2-for.html
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