As New York arbitration law is in accord with the policies of the Federal Arbitration Act, New York law governs federal court review of New York award

As New York arbitration law is in accord with the policies of the Federal Arbitration Act, New York law governs federal court review of New York award
County of Nassau v Chase, United States Court of Appeals, Second Circuit, No. 09-3643-cv, Summary Order

Chase and other parties appealed a federal district court's granting Nassau County’s motion to confirm an arbitration award.

As the contract between the parties provided that “any appeal from an arbitration award is to be governed exclusively by New York state law,” the Circuit Court said that this provision “must be honored by the courts unless the state law conflicts with federal law.”

As, said the court, “New York law accords with the policies of the [Federal Arbitration Act] (in favor of binding arbitration), federal law does not preempt New York state law here. New York state law therefore governs our review of this arbitration award.*

The Circuit Court then set out the following basics with respect to New York State Law concerning arbitration:

1. The appropriate standard is whether the arbitration award "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing N.Y.C. Transit Auth. v. Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332. [Zorc and Chase, said the court, fail to satisfy this standard.]

2. “Arbitrators are not bound by principles of substantive law or legal procedure: An arbitrator "may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter of the agreement," citing Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299

3. Misapplication of law and errors of fact are insufficient to overturn an award. Motor Vehicle Accident Indemnification Corp. v. Aetna Cas. & Surety Co., 89 N.Y.2d 214.
In this instance the Circuit Court said that the arbitration award did not violate any "strong public policy" of New York or federal law nor did the arbitration clause in question did not set out any limitations on the arbitrators' power, and Zorc and Chase never argue to the contrary.

Absent any limitations set out in the arbitration clause, the Circuit Court concluded that the arbitrators cannot have "clearly exceed[ed] a specifically enumerated limitation" on their power.”

Finally, the Circuit Court said that under New York state law, a sufficient showing of partiality can justify overturning an arbitration award, citing CPLR §7511(b) (ii). However, the decision notes that although Zorc and Chase make this assertion, they did not provide any evidence of any actual partiality by any arbitrator. Rather Zorc and Chase claim that because the arbitrators made factual findings adverse to them, the arbitrators must have been harboring secret bias against them. This assertion begs the question of partiality.

The Circuit Court confirmed the district court's grant of Nassau's motion to confirm the arbitration award and denied Zorc and Chase petition to vacate the award.

* The Circuit Court, agreeing with the District Court that the arbitral award must be confirmed, did so “pursuant [the CPLR] §7510, and not the Federal Arbitration Act, 9 U.S.C. § 9, as the District Court did.”

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/doc/09-3643_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/hilite/
NYPPL

Civil Service Law Section 72 leave

Civil Service Law Section 72 leave
Lara v City of New York, 1999 WL 459803.

It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.

Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.

The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.

The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”

Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”

Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”

On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.

The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.

Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.

A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.

Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”

The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.
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Terms and conditions of the appointment

Terms and conditions of the appointment
Carney v Insetta, App. Div., 3rd Dept., 263 AD2d 743, motion for leave to appeal denied, 94 NY2d 753

How does one determine what an individual is entitled to as an employee?

In resolving the Carney case, the Appellate Division said: just look at what the individual was offered when he or she was appointed to the position.

Julie Carney was appointed to the position of Animal Control Officer by the City of Oneonta. Previously a “full time” position, Carney was appointed as a part-time employee on an hourly basis. Carney initially was to work at least 24 hours per week and was paid at an hourly rate -- $8 per hour. She was also provided with health insurance benefits. When her work schedule was reduced, Carney said that she was entitled to the “salaried position” and the fringe benefits described in Oneonta’s personnel manual.

Told that she was not entitled to such benefits because she was a part-time employee, Carney for “breach of contract.”

Eventually the issue came before the Appellate Division. The court commented that while “a significant portion” of the briefs submitted by the parties debated the meaning and significance of certain passages set out in the city’s personnel manual, the question of Carney’s entitlement to the benefits she sought was “readily resolved by looking to the terms of her appointment.”

The Appellate Division said that while the position of Animal Control Officer was a full-time, salaried position and, pursuant to the terms of the City’s personnel manual, the incumbent was entitled to certain additional benefits, such as sick leave and vacation time, the record clearly shows, and Carney concedes, she was hired on a part-time, hourly basis.

The court noted that notwithstanding any benefits that may have been available to previous appointees holding the full-time, salaried Animal Control Officer position, there was nothing in the record to indicate that such benefits ever were intended to apply to a part-time, hourly appointee such as Carney.

The fact that the Animal Control Officer title is a “covered position” in the personnel manual was deemed irrelevant, since Carney’s position and the position covered by the manual “is not one and the same.” Significantly, noted the Appellate Division, the benefits described in the personnel manual were not offered to Carney at the time of her appointment and thus could not have formed the basis for her acceptance of the position.

Unless certain rights and benefits are mandated and thus available to an individual as a matter of law or pursuant to a Taylor Law agreement, the employer may set the terms of the appointment, including compensation and entitlement to fringe benefits.

The individual, unless he or she is able to negotiate an alternative arrangement, may either accept or decline the appointment under the terms and conditions offered by the appointing authority.
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Transferring unit work

Transferring unit work
CSEA Local 1000 and Local 836, 32 PERB 3015

The City of Newburgh abolished its positions of animal control officers, who were represented by CSEA. The city unilaterally transferred the duties of the positions to the nonunit police officers represented by Local 836.

CSEA objected and filed an improper practice charge with PERB contending that the city had violated the Taylor Law when it unilaterally transferred “non-emergency” duties previously exclusively performed by the animal control officers.

Ultimately PERB affirmed its Director of Public Employment Practices and Representation’s ruling that “the abolishment of the unit positions was a legislative act by the City Council that was not reviewable under Section 209-a.1(d) of the Act.” PERB said that the Director “correctly found that this was a legislative action involving a nonmandatory subject of negotiation and was not violative of ... the Act.”
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PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period

PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period
CSEA Local 1000 and Westchester County, 32 PERB 3017

Westchester County terminated probationary employee Michael Holcomb.

CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.

PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.

Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”

PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.

PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”

PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.
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