A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed

A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed
Matter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department

David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall.

The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal - to be inappropriate.

Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work.

The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator’s award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson’s employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal.

Supreme Court, rather than grant Youth’s petition, granted the Civil Service Employees Association’s motion to confirm the award and Youth appealed.

Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court’s judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court’s disposition of the matter.

As to Youth’s argument that the “public policy exception” should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue."

Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement.”

In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record.”

In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth’s care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work."

The Appellate Division, acknowledging Youth’s reluctance to continue Jackson’s employment was understandable, ruled that “the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to ‘second-guess’ the factual or legal determinations of the arbitrator.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm
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Seniority in a tenure area and the “40% rule”

Seniority in a tenure area and the “40% rule”
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177

Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.

After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.

The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,

if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”

Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:

Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

and as used in Part 30 of the Commissioner’s regulations, substantial portion means:

40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).

The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.

Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
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An employee organization's duty of fair representation

An employee organization's duty of fair representation
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294

Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.

After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.

Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.

US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.

Confidentiality of e-mail

Confidentiality of e-mail
Footnotes on E-mails

In recent years numerous requests and warnings have been included at the foot of e-mails such as “Please let us know if you are not the intended receiver of this e-mail” or “CONFIDENTIAL – this is privileged correspondence – please destroy if you are not the individual for whom it is intended,” etc.

The latest in what is fast becoming an avalanche of warnings is the following caution appearing at the bottom of an e-mail received from a North Carolina governmental agency:

All email correspondence to and from this address is subject to the North Carolina Public Records Law, which may result in monitoring and disclosure to third parties, including law enforcement.

The Circuit Court of Appeals, Second Circuit, has considered one aspect of disclosing electronic records such as e-mail.

In Pritchard, et al v County of Erie and others, 546 F.3d 222, the Second Circuit considered the question of the ability of a litigant to demand discover of a public employer’s electronic records in the course of federal litigation. In this instance, the Circuit Court held that e-mails between a government attorney and Erie County officials were protected by attorney-client privilege.

Vacating an arbitrator’s award

Vacating an arbitrator’s award
State Nurses Association v Mount Sinai Hospital, 275 AD2d 538

The Appellate Division, Third Department’s ruling in the State Nurses Association case provides a reminder of the guidelines used by the courts when considering a motion to vacate an arbitration award.

The Association attempted to confirm a disciplinary arbitration award involving one of its members.

The arbitrator ruled that although Mount Sinai had just cause to suspend Barbara Tomasino, a registered nurse, dismissal was too harsh a penalty. The arbitrator reasoned that given Tomasino’s long and distinguished employment at Mount Sinai, the lengthy suspension -- 2 1/2 years -- constituted sufficient and appropriate discipline.

The arbitrator directed the hospital to reinstate Tomasino without back pay or benefits and the 2 1/2 years she was out of service was to be deemed a suspension without pay. The hospital, however, refused to allow Tomasino to return to work and the Association brought an Article 75 action seeking to confirm the arbitrator’s award.

Mount Sinai objected and asked the court to vacate the arbitration award on the grounds that it was against public policy, irrational and in excess of the arbitrator’s authority under the CBA. After a State Supreme Court judge confirmed the arbitration award and directed Tomasino’s immediate reinstatement, with back pay and benefits from the date her suspension ended to the date of reinstatement, Mount Sinai appealed.

The Appellate Division affirmed the lower court’s ruling, noting that the limited role courts have in disposing of disputes submitted to binding arbitration pursuant to a collective bargaining agreement. Citing NYS Correctional Officers v State of New York, 94 NY2d 321, the court said:

“Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies.”

Although a court may vacate an award when it determines that it is in violation of a strong public policy, is irrational or exceeds a specific limitation on the arbitrator’s power, the Appellate Division said that it did not find that any of these elements applicable in this case.

On the specific issue of the claim that the penalty imposed violates public policy, the Appellate Division ruled:

“Under the particular circumstances of this case, we find that the arbitrator’s imposition of a 2 and 1/2-year suspension was not in contravention of public policy since [Mount Sinai] has not identified any statute or regulation which requires termination of employment rather than a lengthy suspension in connection with such conduct.”

Also rejected was Mount Sinai’s argument that the arbitrator’s award was irrational, particularly in view of the parties’ explicit direction that the arbitrator determine the remedy due Tomasino if it found a lack of just cause for her dismissal. The court’s conclusion with respect to the penalty imposed by the arbitrator: the remedy of reinstatement without back pay and benefits was well within the arbitrator ‘s authority.

On a related point, in Greenberg v Bear, Stearns & Co. Inc., 220 F.3d 22, the court said that “where a petitioner complains ... in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition.”