Standing to appeal an arbitration award

Standing to appeal an arbitration award

Moreira-Brown v New York City Bd. of Education, 288 AD2d 21

Herbert Moreira-Brown had filed a grievance, which was pursued through arbitration. Acting pro se [on his own behalf], he then attempted to (1) confirm an arbitration award pursuant to Section 7510 of the Civil Practice Law and Rules [CPLR] and (2) vacate a second arbitration award pursuant to Section 7511 of the CPLR. The Supreme Court dismissed both of his petitions and Moreira-Brown appealed.

The Appellate Division affirmed the lower court's determination, holding that Moreira-Brown did not have standing to seek either the confirmation of the first arbitration award or the vacating of the second award.

The court pointed out that the collective bargaining agreement between Board of Education and the Union provided that an employee's grievance could be submitted to arbitration by the union. As Moreira-Brown was represented by the union at the arbitration and he failed to show that the union breached its duty of fair representation, the court found that he did not have any standing to file these Article 75 petitions. The Appellate Division commented that “[t]he record establishes that the union vigorously represented [Moreira-Brown] and there is no evidence of bad faith on the part of the union” that would justify allowing him to maintain his action against the Board of Education and his union.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

New York City Dept. of Correction v Fernandez, OATH Index #1219/11

After being given an assignment by an assistant deputy warden, a correction captain went to the deputy warden’s office to angrily confront him about the assignment. The two men fought and both were injured. 

OATH Administrative Law Judge John Spooner found the captain was insubordinate in not performing the assignment as ordered and in arguing with his supervisor about the order. 

Judge Spooner also found that the captain also made false written and interview statements about the incident.

The ALJ recommended that the captain be suspended without pay for 40 days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1219.pdf

Constructive notice of potential acts of misconduct provided by an Internet posting

Constructive notice of potential acts of misconduct provided by an Internet posting

Salamino v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 05408, Appellate Division, First Department

In this action, the Appellate Division concluded that a teacher served with disciplinary charges alleging that she had engaged in sexual misconduct with a "student" had constructive notice* that such behavior constituted misconduct in violation of the relevant collective bargaining agreement.

As the collective bargaining agreement [CBA] did not define the term “student” for the purposes contract disciplinary procedure, the arbitrator relied Regulation A-101, to determine if the individual with whom the teacher had allegedly engaged in sexual misconduct was a “student” and so found.

The Appellate Division, noting that Regulation A-101 did not purport to state a definition of the term “student," decided this did not mean that the arbitrator acted arbitrarily and capriciously in using Regulation A-101 to determine if the individual involved with the teacher in alleged sexual misconduct was a student

Turning to the teacher’s argument that she was disciplined without just cause within the meaning of Education Law §3020[1] because the CBA did not indicate that Regulation A-101 could be used to determine the meaning of the term "student" for the purposes of the CBA, the Appellate Division pointed out that the Chancellor's Regulations were “posted on the Board of Education website, and thus the teacher was on reasonable notice, under the objective circumstances, of a potential sexual misconduct charge.”

The court then held that the penalty of terminating the teacher from her position “could not be construed as disproportionate to the challenged conduct, inasmuch as CBA Article 21(G)(6) explicitly called for "mandatory" termination in cases of sexual misconduct.”

* Constructive notice is a “legal fiction” that deems that a person has notice even though actual notice was not personally delivered to the individual.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05408.htm