By failing to seek a stay of arbitration a party to the arbitration runs the risk of the arbitrator finding that the subject matter of the dispute is covered under the controlling collective bargaining agreement

A City School District [District] appealed a Supreme Court's decision that granted the Employee Organization's [Union] petition to confirm an arbitration award and denied District's cross petition to vacate that award.

A member of the Union was terminated by the District because she did not possess a valid registration card required by General Business Law §89-g(1)(a) for employment as a security guard. The Union filed a grievance on behalf of its  member and ultimately filed a demand for arbitration.

The District did not move to stay arbitration and the arbitrator subsequently issued an award that directed the District to rescind the termination of the Union's member and reimburse the member for her loss of pay from the date her registration card as a security guard was renewed. The District then appealed the Supreme Court ruling.

The Appellate Division rejected the District's contention that the arbitration award violated public policy requiring the registration of security guards.  Citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, the court said that "[T]he public policy exception to an arbitrator's power to resolve disputes is extremely narrow" and the Court of Appeals has promulgated "a two-prong test for determining whether an arbitration award violates public policy."

The first test: a court, "without engaging in any extended fact-finding or legal analysis that a law prohibits, in an absolute sense, the particular matters to be decided ... by arbitration ...," determines that an arbitrator cannot act. If the arbitration award survives this first test, the court is then to determine if the "award itself violates a well-defined constitutional, statutory or common law of this State."

In contrast, the Appellate Division opined that a court "may not vacate an award on public policy grounds when vague or attenuated considerations of a general public policy are at stake. Courts shed their cloak of noninterference [, however,] ... where the final result creates an explicit conflict with other laws and their attendant policy concerns, focusing on the result, the award itself."*

The Appellate Division concluded that the first prong of the public policy exception has not been met here because nothing in General Business Law §89-g prohibits the resolution of this matter by arbitration, particularly considering an arbitrator's " broad power to fashion appropriate relief'.

As to the second prong of the test, the court said that it had not been met either as the arbitration award did not compel the District to employ the union member as a security officer during the period that she did not have the required registration card. Indeed, opined the Appellate Division, the arbitrator ordered that the union member's termination be rescinded and that she be awarded back pay only from the time when she received her renewed registration card.

Also rejected by the court was the District's argument that the arbitrator exceeded his authority by finding that the collective bargaining agreement (CBA) allowed arbitration of this dispute. While couched in terms of the arbitrator exceeding his authority, the Appellate Division held that "in reality [the District] is contending that 'the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.'"

However, said the court, by submitting to arbitration, the District ran the risk that the arbitrator would find the dispute covered under the CBA, as he did, notwithstanding District's position that the termination of an employee for failing to maintain a required registration card was outside the agreement's scope.

Concluding that the other arguments advanced by the District were "without merit," the Appellate Division sustained the Supreme Court's decision in this matter.

* In support of this observation, the Appellate Division cited Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05451.htm

New York State Governor Andrew M. Cuomo signed bill limiting educational institutions' power to authorize the possession of a weapon on school grounds

Stating that "The answer to the gun violence epidemic plaguing this country has never been and never will be more guns, and today we're expanding New York's nation-leading gun safety laws to further protect our children," Governor Andrew M. Cuomo has signed legislation limiting an educational institution's ability to authorize any person who is not primarily employed as a school resource officer, law enforcement officer or security guard to carry a firearm on school grounds.

The bill amends §265.01-a of the New York State Penal  Law to read as follows [text in italics is new.]: 

§265.01-a[.] Criminal possession of a weapon on school grounds.

A person is guilty of criminal possession of a weapon on school  grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes, of any school, college, or university, except the  forestry lands, wherever located, owned and maintained by the State  University of New York college of environmental science and forestry, or  upon a school bus as defined in section one hundred forty-two of the  vehicle and traffic law, without the written authorization of such  educational institution; provided, however no school, as defined in subdivision ten of section eleven hundred twenty-five of the education law, shall issue such written authorization to any teacher, school administrator, or other person employed at the school who is not primarily employed as a school resource officer, police officer, peace officer, or security guard who has been issued a special armed guard registration card as defined in section eighty-nine-f of the general business law, regardless of whether the person is employed directly by such school or by a third party.

Criminal possession of a weapon on school grounds is a class E felony.

August 2019 issues of AELE's three periodicals have been posted on the Internet

The August 2019 issues of AELE's three periodicals have been uploaded. The current issues, back issues since 2000, and case digests since 1975 are FREE. AELE invites all readers to read, print or download AELE publications without charge.

Law Enforcement Liability Reporter

This issue has cases on assault and battery: physical, dogs, firearms related: intentional use, First Amendment, immigrants and immigration issues, insurance, malicious prosecution, off-duty/color of law: firearms related, race discrimination, and search and seizure: person.
View at: http://www.aele.org/law/2019all08/LR2019AUG.html 

Fire, Police & Corrections Personnel Reporter

This issue has cases on collective bargaining: duty to bargain, First Amendment, handicap/abilities discrimination: accommodation in general, handicap/abilities discrimination: obesity, pensions, privacy, race discrimination, retaliatory personnel actions, sexual harassment, and taxation.
View at: http://www.aele.org/law/2019all08/FP2019AUG.html

Jail and Prisoner Law Bulletin

This issue has cases on diet, foreign prisoners and immigrants, medical care, medical care: mental health. prisoner assault: by officers, prisoner death/injury, and probation.
View at: http://www.aele.org/law/2019all08/JB2019AUG.html

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Workers' Compensation Board rejected a claimant's application for review of a Workers' Compensation Law Judge's decision because it was not filled out completely

The Workers' Compensation Board ruled that a Claimant failed to comply with the requirements of 12 NYCRR 300.13 (b) and denied review of a decision by the Workers' Compensation Law Judge. The Board found that the application for Board review was defective because it was not filled out completely and, as a result, denied Claimant's application.

Claimant appealed, contending that the Board abused its discretion in denying her application for Board review based upon her failure to comply with the rules governing the content of such applications that require the application to be filled out completely. The Appellate Division disagreed and sustained the Board's determination.

The court noting that "the Board 'may adopt reasonable rules consistent with and supplemental to the provisions of [the Workers' Compensation Law],' and the Chair of the Board 'may make reasonable regulations consistent with the provisions of [the Workers' Compensation Law],''' explained that where, as here, the Board's regulations provide that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [of the Board]" and "must be filled out completely."

Here Claimant was represented by counsel and filed her Form RB-89 application for Board review. Although question number 13 on that application requested that claimant provide the "[h]earing dates, [t]ranscripts, [d]ocuments, [e]xhibits, and other evidence" that she would rely upon in her administrative appeal and advised to "see [the] instructions for details," it is not disputed that Claimant's application failed to provide the requested information by leaving the box for question number 13 blank.

As the Board explains in its guidance document on this issue, the "RB-89 [form] is the application for review itself, and [it] is not merely a coversheet." By requiring an applicant to completely fill out the application for Board review, "the 'completeness doctrine' assists the responding party in identifying the exact issues, grounds and evidence used in support of the application in determining the issues and crafting a timely and effective rebuttal. Having a complete application . . . also assists the Board in providing timely and effective review of the application . . . as it eliminates confusion over which evidence is involved in the application and which issues are preserved for appeal."

Completion of an application for Board review, opined the Appellate Division, means that "each section or item of [the application or rebuttal] is completed in its entirety pursuant to the instructions for each form" and that a form is not filled out completely "when a party responds to sections or items on the form merely by referring to the attached legal brief or other documentation without further explanation." Accordingly, said the Appellate Division citing 12 NYCRR 300.13 [b] [4] [i], the Board may deny an application for review where the party seeking review, other than a claimant who is not represented by counsel, fails to fill out completely the application or otherwise fails to "comply with prescribed formatting, completion and service submission requirements" [Emphasis supplied].

The Appellate Division said that in its view, "the Board's format requirements for applications for Board review submitted by represented claimants are reasonable given the reasons identified by the Board and were promulgated pursuant to its statutory authority and "broad regulatory powers" and sustained the Board's decision that Claimant's application was defective because it was not filled out completely.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05365.htm

Appointing authority rejects hearing officer's recommendation to continue benefits being provided police officer pursuant to General Municipal Law §207-c after the police officer suffered a job-related injury

The petitioner [Police Officer] in this CPLR Article 78 action suffered a job-related injury and was granted benefits pursuant to General Municipal Law §207-c* by the appointing authority Subsequently Police Officer  returned to work on a light-duty assignment and later was examined by a physician on behalf of the appointing authority. The physician reported that Police Officer was capable of returning to work on full duty as a police officer without restrictions.

The appointing authority terminated the Police Officer's §207-c benefits and directed that "he return to full duty, without restrictions." In accordance with the relevant provisions set out in a collective bargaining agreement [CBA], the Police Office requested a hearing and ultimately the designated hearing officer recommended that Police Officer continue to be provided with GML §207-c benefits. Notwithstanding the hearing officer's recommendation, the appointing authority issued a final determination denying the Police Officer's application for §207-c benefits finding that "based on the entire record" Police Officer was capable of performing his full duties as a police officer. Upon being notified that his light-duty assignment was terminated and being directed to return to work full time, without restrictions, Police Officer commenced this CPLR Article 78 proceeding, which Supreme Court transferred to the Appellate Division for its consideration.

The Appellate Division, citing Matter of Campo v City of Mount Vernon, 156 AD3d 694, explained that "[j]udicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Here, said the court, the hearing procedures were negotiated by the appointing authority and the Police Officer's union and memorialized in a CBA. The CBA provided that hearing officer was to issue findings of fact and make a recommendation on the questions certified to him. The appointing authority, however, retained full power and authority to render the final determination on the questions.

Noting that the hearing officer's findings are entitled to considerable weight, the Appellate Division explained that such findings "are not conclusive and may be overruled by the administrative authority, provided that the final determination is supported by substantial evidence."

Here, said the court, there was conflicting medical evidence and "it was for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists." In words of the Appellate Division, [t]he testimony and opinion of the physician who examined the [Police Officer] on behalf of the [appointing authority] was rational and fact-based and, since a reasonable mind could accept that testimony and opinion, the determination of the [appointing authority] is supported by substantial evidence."  

The Appellate Division confirmed the appointing authority's determination terminating Police Officer's  light-duty assignment and directing him to return to work full time and dismissed the Police Officer's petition "on the merits, with costs."

* GML 207-c provides for the payment  of the salary, wages, medical and hospital expenses of   law enforcement personnel suffering injuries or illness incurred in the performance  of their law enforcement  duties. GML 207-a provides similar benefits to firefighting personnel suffering injuries of illness incurred in the performance of their firefighting duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05670.htm

_________

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