The threshold decision as to the arbitrability of a matter is to be made by the court absent the parties “clear and unmistakable agreement to arbitrate arbitrability”

The threshold decision as to the arbitrability of a matter is to be made by the court absent the parties “clear and unmistakable agreement to arbitrate arbitrability”
In the Matter of the Arbitration of Sherwood (Kirkpatrick), 2013 NY Slip Op 05372, Appellate Division, Third Department

While a collective bargaining agreement (CBA) was in effect, the Dryden Central School District (District) and Dryden Faculty Association (Association) entered into a separate memorandum of understanding (MOU) in which the parties [1] recognized the Association as the bargaining unit representative for all regularly appointed registered professional nurses working in the District, [2] agreed upon the nurses' terms and conditions of employment, and [3] agreed that the terms and conditions set out in the MOU would remain in effect until incorporated into the next collective bargaining agreement following the expiration of the then current CBA

The District subsequently terminated a nurse represented by the Association* and the nurse grieved the District’s action. When the grievance was denied by the District the Association demanded that the matter be submitted to arbitration. In response the District initiated a proceeding to permanently stay arbitration. The Association counterclaimed seeking a court order to compel arbitration.

Supreme Court granted the District’s petition and permanently stayed the arbitration. The Association appealed, contending that an arbitrator, rather than a court, should decide whether the parties' dispute was arbitrable.

The Appellate Division disagreed with the Association, noting that the responsibility for this threshold determination lies with the courts unless the parties have "evinced a clear and unmistakable agreement to arbitrate arbitrability.” Here, said the court, neither the CBA nor the MOU contains any such agreement and thus Supreme Court properly addressed this issue.

The court explained that “It is well settled that ‘[a] party cannot be compelled to arbitrate in the absence of an express, direct and unequivocal agreement to do so,’" citing Matter of Massana Central School District, 82 AD3d 521.

While the CBA provides for arbitration as the final step of the grievance process, the MOU neither contains its own arbitration provisions nor explicitly incorporated those provisions as set forth in the CBA. Although the Association argued that the CBA's arbitration provisions apply to covered nurses as the MOU does not expressly exclude them, this argument, said the Appellate Division, is unsupported by the terms of the MOU and the rules governing contract interpretation.

The Appellate Division noted that the MOU specifically identified selected provisions of the CBA to be applied to covered nurses and set out detailed additional provisions on several other subjects, including procedures for discharging nurses and terminating their employment, but did not include the arbitration provisions. Accordingly, said the court, as the MOU neither mentions arbitration nor indicates that any CBA provisions other than those expressly stated will apply to nurses, read as a whole, the MOU “unambiguously reflects the parties' intention to establish independent terms and conditions of employment for nurses that do not include the CBA's arbitration provisions.”

The bottom line: Absent an "express, direct and unequivocal agreement" to arbitrate this dispute, the Appellate Division ruled that Supreme Court had properly granted the District’s application to permanently stay the arbitration. To hold otherwise, said the court, would violate the basic principle that "courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing"

* The Appellate Division noted that although the nurse's employment was terminated after the end date specified in the CBA, no new agreement has been negotiated, both the CBA and the MOU remain in effect under the Triborough Doctrine {Civil Service Law §209-a [1] [e]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05372.htm

An employee removed from his or her position by a civil service commission pursuant to Civil Service Law §50.4 is not entitled to a pre-termination hearing

An employee removed from his or her position by a civil service commission pursuant to Civil Service Law §50.4 is not entitled to a pre-termination hearing

95 AD2d 1005

Citing Mingo v Pirnie, 55 NY2d 1019, the Appellate Division ruled that "Contrary to the petitioner’s contention, her status as a permanent appointee in the competitive class of the classified civil service did not entitle her to a mandatory pretermination hearing under Civil Service Law § 75(1)(a), where the Nassau County Civil Service Commission relied upon Civil Service Law § 50(4) in revoking her payroll certification and directing the termination of her employment."

In Mingo a county civil service commission disqualified an employee following his permanent appointment and removed him from his position with the village pursuant to §50.4 of the Civil Service Law. The Commission had determined that the individual had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application”. 

The employee sued, contending that the commission could not disqualify him for employment in the position without first providing him with a pre-termination hearing.

The Court of Appeals rejected this argument, stating that §50.4 “requires no more than that the person be given a written statement of the reasons [for his or her disqualification for employment] and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification. No hearing is required.”

The Commission had found that the employee had falsified his application with respect to his experience and had concealed relevant facts related to his separation from previous employment.

Governor Cuomo announces estate tax refunds available to qualified spouses of same-sex couples

Governor Cuomo announces estate tax refunds available to qualified spouses of same-sex couples

Source: Office of the Governor

On July 23, 2013, Governor Andrew M. Cuomo announced that Estate Tax refunds are available to qualified spouses of same-sex couples. Refunds may be available as a result of the recent United States Supreme Court decision, United States v. Windsor, in which the Court held that §3 of the Defense of Marriage Act (DOMA) is unconstitutional. 

Edie Windsor, a New Yorker, sued the federal government after the Internal Revenue Service denied her refund request for the $363,000 in federal estate taxes she paid after her spouse, Thea Spyer, died in 2009. She also had filed a protective claim with the New York State Tax Department asking for a similar Estate Tax refund from New York. Generally, a claim for credit or refund of an over-payment of estate tax must be filed by a taxpayer within three years from the date the original return was filed or two years from the date the tax was paid. 

Taxpayers believing that they may affected by the Windsor ruling should contact the New York State Taxpayer Information Center at 518-457-5387.

Additional information can be found on the Tax Department’s memorandumon estates of same-sex couples.

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

2013 NY Slip Op 05280, Appellate Division, Third Department

A claimant for unemployment insurance benefits challenged his dismissal from his position by the employer but an arbitrator concluded that there was just cause for his termination.

Subsequently the Unemployment Insurance Appeal Board denied the claimant’s application for unemployment insurance benefits, ruling that he was disqualified from receiving such benefits because he was terminated for disqualifying misconduct. The claimant then appealed the Board’s ruling.

The Appellate Division affirmed the Board’s decision explaining that "as there was a full and fair opportunity to litigate the issue in the prior [arbitration] proceeding, collateral estoppel effect must be given to the arbitrator's factual findings regarding claimant's misconduct."

As the Board had appropriately taken into account the arbitrator's factual findings and made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance" the Appellate Division found no basis to overturn the Board's ruling.

Although the individual contended that “at worst, the alleged conduct constituted an excusable error in judgment,” the Board disagreed.

The decision notes that the individual had been counseled by the employer prior to this incident "for various safety violations" and where the misconduct is potentially detrimental to the employer's best interest may, “as in this instance, be sufficient to constitute disqualifying misconduct.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05280.htm

Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment

Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment

Decisions of the Commissioner of Education, Decision 10918

The relevant collective bargaining agreement provided that a temporary appointment was to be made when a substitute teacher was to be so employed for more than 40 consecutive days.

When the teacher for whom she was substituting died, the School Board, at the request of the Union to fill the position in accordance with the terms of the CBA, “temporarily appointed” the substitute teacher to the vacancy.

The substitute was subsequently notified that she was not under consideration for permanent appointment. She sued contending that she was a probationer in the vacant position “by operation of law”. 

Following a series of administrative and Court proceedings, the question was remanded to the Commissioner of Education for further consideration.

The Commissioner, in considering the merits of the teacher's appeal, held that although the Board has no authority to make other than probationary appointments to fill permanent vacancies, a teacher may waive the statutory entitlement.

The Commissioner then found that the CBA provision, with which the Board had complied at the request of the Union, provided for a “temporary appointment.” Accordingly, the Commissioner concluded that the CBA’s provision constituted such a waiver and the substitute teacher could not challenge the School Board’s appointing her as a temporary teacher rather than as a permanent appointee subject to the satisfactory completion of a probationary period under the circumstances.