Vacating an arbitration award

Vacating an arbitration award

2013 NY Slip Op 50666(U), Supreme Court, Part-orange County, Judge Catherine M. Bartlett [Not selected for publication in the Official Reports]

It is “black letter law” that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power and every reasonable intendment is indulged in favor of an award." Further, the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the] respondent and must be met by clear and convincing proof."

In this case the employer commenced a special proceeding in an effort to vacate an arbitration award that provided for the temporary suspension of an employee without pay for “the balance of the school year” and required the employee to attend an anger management class.

The employer appealed in an effort annul the penalty imposed by the arbitrator, contending that under the circumstances this "punishment did not fit the crime" that the arbitrator's decision was irrational given the sworn testimony of various witnesses concerning the employee’s [mis]behavior, and argued that the "shockingly lenient penalty" was enough to shock the court's conscience and violated public policy. In lieu of the penalty imposed by the arbitrator, the employer sought the termination of the employee.

In rebuttal, the employee argued that the arbitrator’s decision to suspend him without pay and require his participation in anger management training was well within the bounds of the arbitrator’s decision making authority and should not to be upset by the court.

Judge Bartlett observed that “Under CPLR §7511, the court may scrutinize an arbitration award only on the narrow grounds specified in subdivision (b) and only upon the application of a party.” As to the employer’s public policy argument, the court pointed out that in Civil Serv. Empls. Assn., Town of Callicoon Unit, 70 NY2d 907, the Court of Appeals held that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

In addition, Judge Bartlett commented that “every reasonable intendment is indulged in favor of an award” and that in this instance the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the employer] and must be met by clear and convincing proof,” citing Matter of Mencher, 276 App.Div. 556, 96 N.Y.S.2d 13.

As to the employer’s claim that the arbitrator’s award was violative of public policy, Judge Bartlett observed that an arbitration award will be vacated on public policy grounds only where such policy "prohibit[s], in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator."

As to the arbitration award at issue, Judge Bartlett held that “upon review of the arbitration decision on its face, it cannot be said as a matter of law that public policy precludes its enforcement,” explaining that in this instance the hearing officer determined that an effective suspension for almost four months without pay plus remedial action in the form of required anger management training was the appropriate penalty.

Noting that there was no evidence that the employee previously or subsequently engaged in similar conduct, and that the employee had expressed his remorse and complied with the penalties imposed by the arbitrator, the court said that the fact that the employer disagreed with the arbitrator’s determination “does not empower this Court to dismantle the process.”

Accordingly, Judge Bartlett denied the employer’s application in its entirety.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50666.htm

An uncertified union or unrecognized employee organization has a limited access to use a school mailboxes to contact employees

An uncertified union or unrecognized employee organization has a limited access to use a school mailboxes to contact employees

PERB decision U-3885

PERB has held that the Taylor Law does not require a public employer to give an unrecognized or an uncertified union competing with the recognized or certified employee organization equal access to teachers or mailboxes for the purpose of soliciting members except when such contact is timely in connection with a relevant challenge period. 

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

Shaw v. Lerer, 112 Misc2d 260

Typically a request to obtain a public record[s] pursuant to the Freedom of Information Law is required only in the event the custodian of the public record[s] sought declined to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

However, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

After officiating at interscholastic senior varsity hockey games for two years, Shaw was assigned only junior varsity events.

Rating summary sheets prepared by fellow officials evaluating Shaw were provided to him. Shaw, however, then demanded copies of the individual evaluations prepared by high school coaches pursuant to the Freedom of Information Law (§87, Public Officers Law). The request was denied and the Shaw filed a petition in Supreme Court challenging the custodian of the records decision not to provide the ratings to him.

Supreme Court dismissed Shaw’s petition, holding that the individual ratings of Shaw by the panel members fell within an exception to disclosure under the law as they were “interagency documents” (See POL 87.2g). The court stated that “If the disclosure is more harmful to the public than nondisclosure, the scales of justice must tip towards nondisclosure.”

In a similar case, a teacher was denied information concerning the votes of two other faculty members considering his application for tenure sued in federal court. The court held that there was no showing that the denial of tenure was for constitutionally impermissible reasons (Gray v. Board of Higher Education, City of New York, 92 FRD 82). Here, said the court, “the benefit likely to be gained by disclosure...for which privilege was claimed, was outweighed by the potential effect of ordering disclosure of confidential votes made under a peer review system”, a point noted by the court in Shaw as well.

Hearing officer’s discontinuing the hearing prior to completion because of individual’s unruly conduct creates a problem

Hearing officer’s discontinuing the hearing prior to completion because of individual’s unruly conduct creates a problem

88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive. In such situations the “rules of procedure” should be carefully considered.

The Chairperson at the administrative hearing stopped the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of the individual’s “personal vituperation and ... abrasive behavior, despite repeated warnings” concerning such behavior by the hearing officer.

The Chairperson then sustained the employee’s unsatisfactory service rating, which determination was later affirmed by the Chancellor of the New York City Board of Education. The employee then sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division, reversing a lower court ruling to the contrary, held that the failure to provide the employee with the “Review Format” was an abuse of the Chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation [and] denied (the employee) a substantial right”.

The matter was then sent back to the school district with instructions that employee “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format”. 

Seminar for school districts focusing on the Affordable Care Act scheduled for July 17, 2013

Seminar for school districts focusing on the Affordable Care Act scheduled for July 17, 2013

Harris Beach, a law firm, has announced that it is offering a complimentary seminar titled “De-Mystifying the Affordable Care Act [ACA]: Practical Steps You Should be Taking Now” on Wednesday, July 17th from 1:00 to 3:00 p.m. at The West Room, Reid Castle at Manhattanville College, 2900 Purchase Street, Purchase, NY 10577.

Harris Beach said that the program is “specifically designed to help clear up confusion among superintendents, business officials, HR personnel and board members over ACA employer mandates.”

 Full program details are available by clicking on the following link, “De-Mystifying the Affordable Care Act.”

To register, e-mail Jennifer Jones at jjones@harrisbeach.com or call Ms. Jones at 800-685-1429 ext. 1114.