The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

New York State Dept. of Corr. Servs. (New York State Corr. Officers & Police Benevolent Assn., Inc.), 2012 NY Slip Op 07242, Appellate Division, Third Department

Upon the conclusion of a disciplinary arbitration the arbitrator found the employee guilty of certain charges and made an “interim award,” imposing a penalty of suspension without pay for 45 days and directing that the employee “otherwise be made whole.”

The final award mirrored the arbitrator's interim award but further provided that the arbitrator was "maintain[ing] jurisdiction . . . in the event that any dispute [arose] between the parties over the implementation of [the] [a]ward."

After the employee returned to work he filed a grievance alleging that the Department of Correctional Services*had not restored all of the back pay, time accruals and other benefits due him as directed by arbitration award.

Ultimately it appears that the employee’s union, the New York State Corr. Officers & Police Benevolent Assn. [NYSCOPBA] asked the arbitrator to reopen the arbitration to ascertain whether employee had been made whole pursuant to the terms of his award. A hearing date was scheduled, but the Department, contending that the arbitrator was powerless to, among other things, reopen, modify or explain the prior award, objected.

Notwithstanding the Department’s objection, the arbitrator conducted a hearing in which only NYSCOPBA participated and subsequently awarded the employee approximately $4,000 in vacation and holiday accruals.

The Department filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award upon the ground that the arbitrator exceeded his power in reopening the proceeding. In rebuttal, NYSCOPBA argued that the Department had waived its right to seek vacatur of the award and cross-moved to confirm the award.

Supreme Court granted the Department’s application, vacating the award whereupon NYSCOPBA appealed contending that the Department “waived [its] opportunity to vacate the [challenged] arbitration award by, among other things, failing to challenge the arbitrator's assertion of continuing jurisdiction and/or participating in the [challenged] arbitration hearing."

The Appellate Division affirmed the Supreme Court’s ruling, rejecting NYSCOPBA’s argument that the Department had waived any of its rights. The court explained that the Department was “not immediately aggrieved by the arbitrator's purported retention of jurisdiction, the exercise of which admittedly was conditioned upon a future … entirely theoretical dispute between the parties as to the subsequent implementation of the award.”

Further, said the Appellate Division, while NYSCOPBA is correct that "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place," here the Department expressly objected to the proposed hearing in writing, and it is undisputed that it did not attend in the hearing. Accordingly, the Appellate Division said that it was satisfied that the Department did not "actively participate [in the arbitration]."

As to merits of NYSCOPBA’s appeal, the court said that it is well settled “that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself.’

The Appellate Division said that the controlling provision of the collective bargaining agreement between the parties specifically provides that “[d]isciplinary arbitrators shall confine themselves to determinations of guilt or innocence and the appropriateness of proposed penalties . . . [and] shall neither add to, subtract from nor modify the provisions of [the CBA]." Further, said the court, the CBA agreement further provides that "[t]he disciplinary arbitrator's decision with respect to guilt[,] innocence [or] penalty . . . shall be final and binding upon the parties," which language “evidences a clear agreement by the parties to the CBA to ‘limit the discretion of disciplinary arbitrators.’"

While there may be circumstances where an arbitrator's retention of jurisdiction will be deemed permissible, in this instance the Appellate Division concluded that “such circumstances cannot — in light of the restrictive language of the underlying CBA — be said to exist here.”

Accordingly, court ruled that arbitrator's retention of jurisdiction in this matter "clearly exceed[ed] a specifically enumerated limitation [upon his] power” and the arbitrator's authority over the issues submitted to him ended once he rendered his decision.

* The Department of Correctional Services is now known as the Department of Corrections and Community Supervision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07242.htm

Handbook of New York State and Local Taxes, October 2012 Edition

Handbook of New York State and Local Taxes, October 2012 Edition

The Handbook of New York State and Local Taxes provides a general descriptive overview of the taxes which New York State and its local governments impose and is revised periodically to reflect recently enacted changes in the law.

This publication does not include non-tax revenue sources such as motor vehicle fees and the Lottery. Instead, it focuses on taxes, especially those administered by the Department of Taxation and Finance.

The handbook is posted on the Internet at:
http://www.tax.ny.gov/research/stats/statistics/new_reports.htm

New York Public Personnel Law statistics for October 2012

New York Public Personnel Law statistics for October 2012

Total number of postings through October 31, 2012: 2887

Number of readers during the month of October 2012: 18,937

The five most read postings during the month of October 2012: 

Termination by operation of law at:

http://publicpersonnellaw.blogspot.com/2009/11/termination-by-operation-of-law.html;

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html;

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html;

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html; and

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 07178, Appellate Division, Third Department

The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”

Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.

The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).

When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.

Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”

The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:

1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and

2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07178.htm