Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.

Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.

2014 NY Slip Op 03265, Appellate Division, Second Department

MTA Bus Co. had a policy banning cell-phone use while operating a bus. After the bus driver allegedly violated the MTA’s cell-phone policy three separate occasions and, in accordance with that policy, he had been suspended from employment for a period of 10 days.

Following the bus driver's fourth violation MTA terminated his employment. 

The bus driver’s union filed a grievance challenging the termination, and an arbitration hearing was conducted. After the hearing, the arbitrator concluded that the bus driver had committed a "cell phone violation," and that MTA's decision to terminate his employment was proper. The bus driver filed and Article 75 petition seeking a court order vacating the arbitration award.

Supreme Court denied the petition, in effect confirming the award and the bus driver appealed, contending that the arbitration award was irrational.

The Appellate Division, noting that "Judicial review of an arbitrator's award is extremely limited" said a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further said the court, "Courts are bound by an arbitrator's . . . judgment concerning remedies [and] 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." In addition the court commented that the fact “That the arbitrator may have treated the petitioner differently or less favorably than another similarly situated bus driver is not a ground to vacate the arbitration award.”

The Appellate Division held that the arbitrator's award was justified and, hence, rational as the record showed that the bus driver was aware of MTA’s cell-phone policy and had been previously suspended for 10 days for violating that policy. The court explained that violation of the MTA's cell-phone policy, which also violates New York law, constitutes appropriate grounds for termination of employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03265.htm
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On the Blogs: REAL-NY

On the Blogs: REAL-NY

On the Internet at: http://realny.org/

Powered by the legal information website, LawHelpNY, REAL-NY is a is a public-interest news blog that focuses on stories and organizations that matter to the lives of low-income New Yorkers in general and to access to justice in particular.

The Blog stories and resources that may help people solve problems and bring attention to issues that need more attention.  Built around a community service media model, this blog targets low-income New Yorkers and the community groups, nonprofits, and government agencies that assist them.

Using the power of design, multi-media, discussion forums, online polls, and short and informative plain- it posts articles to help New Yorkers learn about their legal rights as they apply to current events and community resources.

REAL-NY provides general information only. To find a lawyer in your area please visit http://www.lawhelpny.org/ and select a topic which best covers your legal problem.

For more information, contact the Technology Innovations Manager at LawHelpNY, Wilneida Negron at wnegron@nylawhelp.org.
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A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit

A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit

Local 342, Long Is. Pub. Serv. Employees v Huntington, 2014 NY Slip Op 03271, Appellate Division, Second Department

Public Officers Law §18*permits a political or civil subdivision of the State whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation to “confer the benefits of the section” upon its employees, and (ii) to be held liable for the costs incurred under these provisions including the defense and indemnification its officers and employees, other than the sheriff of any county or an independent contractor.

This provision may be triggered in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties.

However, this duty to provide for a defense does not arise where such civil action or proceeding is brought by or on behalf of the public entity employing such employee.

As the Local 342 decision demonstrates, a political or subdivision of the State may also obligate itself to be liable for such costs by including such an obligation in a collective bargaining agreement.

An arbitrator determined that the Town of Huntington had breached a provision in a collective bargaining agreement by failing to pay certain legal fees on behalf of an employee in the collective bargaining unit.

The Appellate Division said that Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power.

The court explained that although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" to do so.

In this instance, said the Appellate Division, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the individual.**

* Public Officers Law §17, provides for the defense and indemnification of officers and employees of the State as the employer by the State. .

** See Civil Service Law Section 204-a

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03271.htm
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