Guidelines controlling the judicial review of an arbitrator's ruling

A labor union [Union] representing employees of a public library [Union] filed a grievance, alleging that the Board of Trustees of the library [Board] violated an article of the parties' collective bargaining agreement [CBA] by failing to retroactively correct a salary inequality between the library employees and certain employees of the city. The CBA article in question, refer to as the "pay parity provision," required the Board to "actively pursue" funding "to maintain the historic link between the salaries of the library employees and the relevant employees of the city represented by the Union and such funding was to be applied retroactively if necessary "to correct an inequality."

The grievance procedure set out in the CBA did not resolve the dispute and the parties submitted to an arbitrator to determine if the Board violated the pay parity provision of the CBA, as well as the question of, if a violation was found, what was the appropriate remedy. After a hearing, the arbitrator determined that the Board had violated the provision of the CBA relied on by the Union, and that the Library employees were therefore entitled to a retroactive salary increase. The arbitrator then directed that the retroactive salary increase would be conditioned upon excision of the pay parity provision from the CBA going forward.

The Board initiated a CPLR Article 75 to vacate the portion of the arbitration award which called for excision of the pay parity provision from the CBA. Supreme Court granted the petition and remitted the matter to a different arbitrator for a new hearing and determination of the manner and timing of the "parity payments." The Board then appealed the Supreme Court's ruling.

The Appellate Division, affirming the lower court's ruling, explained that "[J]udicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, and courts may only vacate an arbitrator's award on the grounds specified in CPLR §7511(b). As the Board had advanced as its ground for vacatur under that statute "an excess of power," the court further explained that an arbitrator's award may only be vacated where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332.

Supreme Court had concluded:

1. The Union's interpretation of the pay parity provision was correct;

2. The CBA provision had been violated;

3. A retroactive salary increase for employees in the Union's collective bargaining unit was warranted; but

4. The arbitrator exceeded his power by essentially rewriting the parties' contract by eliminating the "pay parity provision going forward."

As the Appellate Division agreed with the lower court's findings and its determination vacating the portion of the arbitration award that conditioned relief upon excision of the pay parity provision from the CBA and remitting the matter to a different arbitrator for a new hearing and determination on limited issues, it sustained the lower court's rulings.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09262.htm

Making it right notwithstanding two wrongs

In the event two or more employees are found guilty of being involved in a wrongdoing, one individual might decide to sue one or more of the other wrongdoers for redress or damages.

In a case involving Person A lending some money to a friend, Person B. Person B later refused to repay a loan contending that the repayment of the money is not judicially enforceable because the loan was funded by the proceeds of illegal gambling, which resulted in Person A suing Person B seeking a court order mandating that Person B repay the loan to Person A.

The Court of Appeal, affirming a ruling by the Appellate Division, held:

'The doctrine of waiver does not preclude consideration of [Person B's] challenge here to the enforceability of the loan on the ground that it was funded by illegal gambling proceeds. Nevertheless, that defense was properly rejected on the merits. Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their terms (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 359-361 [2019]). There is an affirmed finding, supported by the record, that the parties entered into a bona fideloan agreement and the facts do not support voiding the agreement on public policy grounds.

"Neither the terms of the agreement nor [Person A's] performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties' illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as "malum in se, or evil in itself" (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 128 [1992]) and the source of funds used for a loan is not typically a factor in determining its validity.

"[Person B] argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, [Person B] receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward "a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'" (id., quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]; cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]). Although we do not condone [Person A's] illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09058.htm

Courthouse Sanctuary for litigants

On December 19, 2019, a New York federal district court judge denied the U.S.government's motion to dismiss a lawsuit challenging the constitutionality of the U.S. Department of Homeland Security's Office of Immigration and Customs Enforcement [ICE] attempts to effect arrests in court houses located in New York State.

U.S. District Judge Jed Rakoff declined to dismiss a lawsuit challenging the constitutionality of ICE's efforts to effect such arrests. Judge Rakoff rejected the government’s arguments that [1] implied the arrests were “none of this Court’s business" and [2] that even if it were within the jurisdiction of the court, "the common law privilege against courthouse arrests doesn’t apply to ICE."

Below is a portion of a New York State Supreme Court ruling that, in pertinent part, addresses the doctrine.

North Fork Bank, Plaintiff,
v
Raymond Grover et al., Defendants.

District Court of Suffolk County, Third District,

January 23, 2004, 3 Misc 3d 341

APPEARANCES OF COUNSEL

Raymond Grover, defendant pro se. Diane Grover, defendant pro se. 

Halpern, Halpern, Axelrod, Kirschenbaum & Phillips, P.C., Mineola (Elliot Phillips of counsel), for plaintiff.

OPINION OF THE COURT

[Addressing "Courthouse Sanctuary"]

C. Stephen Hackeling, J.

The court explained:

"Despite antagonistic dicta to the contrary, most modern era precedent dealing with the issue of "Courthouse Sanctuary" from service of process has held that New York State residents receive no such immunity protections. (Baumgartner v Baumgartner, 273 App Div 411 [1st Dept 1948]; Department of Hous. Preserv. {**3 Misc 3d at 343}& Dev. of City of N.Y. v Koenigsberg, 133 Misc 2d 893 [Civ Ct, NY County 1986]; Ford Motor Credit Co. v Bobo, 1 Misc 3d 901[A], 2003 NY Slip Op 51464[U] [Nassau Dist Ct, Miller, J.].) These cases hold that the courthouse sanctuary is only available to foreign state residents who come into New York's courts to contest jurisdiction. This doctrine has been slightly expanded to include New York residents who enter the jurisdiction of a New York court of limited territorial jurisdiction to contest jurisdiction. (See Palazzo v Conforti, 50 NYS2d 706 [Civ Ct, NY County 1944]; Singer v Reising, 154 Misc 239 [Mun Ct, Queens County 1935].)

"The Baumgartner Appellate Division panel (at 413) also acknowledges a limited "Courthouse Sanctuary" rule for New York residents if such service would "constitute a disturbance directly tending to interrupt the proceedings of the court or to impair the respect due to its authority." This rule by itself would not be applicable to the instant case as service of process was effected in the courtroom but outside the court's presence and in between calendar calls.

"State Residency Immunity Distinction?

"The English common law made no New York state residency distinction. The doctrine of immunity from arrest of a litigant attending a trial of an action to which he is a party found early recognition and dates back to the Year Book of 13 Henry IV, I, B (Sampson v Graves, 208 App Div 522 [1st Dept 1924]). This is for the obvious reason that Englandhad no sovereign states. The privilege is not a creature of statute, but was created and deemed necessary for the due administration of justice. (See Matthews v Tufts, 87 NY 568, 570 [1882], citing Van Lieuw v Johnson, Ct App, Mar. 1871 [unreported].)*

The logical question now arises, exactly when did New York's appellate courts recognize a residency distinction for application of the "Courthouse Sanctuary"? The answer is that the Court of Appeals never established such a rule. In contra point of fact, the Court of Appeals has opined that "[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle as well as upon authority their immunity from the service of process for the commencement of civil actions against them is absolute eundo, morando et redeundo." (Person v Grier, 66 NY {**3 Misc 3d at 344}124, 125 [1876].)

"In this unanimous opinion, the Court of Appeals expressly addressed the New York Stateresident immunity distinction and established in its dicta (at 126) that "whether any distinction should or does in fact exist, is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process." It is noted that Person involved a foreign state resident. In establishing the sanctuary doctrine, the Court stated that (at 125) "this rule is especially applicable in all its force to suitors and witnesses from foreign States . . . ." By direct implication, the Court of Appeals is also applying the protective rule to New York residents.

"The basis of the "Courthouse Sanctuary" rule is that parties should be allowed to contest jurisdiction without submitting to it. "Allowing Re-service . . . makes a mockery of the traverse hearing and essentially allows the plaintiff to use a defective default judgment as a weapon to compel the defendant to submit to service of process." (Ford Motor Credit Co. v Bobo, supra at *2.) The location of an individual's residence does little to legitimize such a mockery. Absent the compulsion of clear controlling precedent, this court will not condone such a situation."

* As memorialized by the Latin phrase eundo, morando, et redeundo  [Latin]  [Going, remaining, and returning], a phrase was used to describe a person (for example, a witness or legislator) who is privileged from arrest while traveling to the place where assigned duties are to be performed, while remaining there, and while returning. 

Judge Hackeling decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2004/2004_24045.htm

Procedural error results in the dismissal of an appeal to the Commissioner of Education

§310 of the Education Law provides for an aggrieved party filing an appeal or petition challenging an act or omission with the Commissioner of Education and the Commissioner is "authorized and required to examine and decide" issues involving, but not limited to, an act or omission at a school district meeting; by a district superintendent and other officers, and official act or decision of any officer, school authorities, or meetings concerning any other matter addressed by the Education Law.

In this appeal, a school superintendent [Petitioner] asked the Commissioner of Education to remove the president and member of the board [President] from the School Board. The Commissioner dismissed the Petitioner's appeal, explaining appeal must be rejected and the application denied because Petitioner's application failed to include proper notice to the President as required by §277.1(b) of the Commissioner’s regulations,* citing Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482 among other Decisions of the Commissioner of Education.

The notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings and a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent.

* See 8 NYCRR Part 877, Practice on application for removal of school officers.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17803

Applying the Doctrine of res judicata

Plaintiffs brought a putative class action against their employer, the New York City Housing Authority [“NYCHA”], and their labor union, Defendant-Appellee Union Local 237, I.B.T. [the “Union”] alleging that NYCHA paid them less than similarly situated white employees and that their Union tacitly approved and encouraged this discriminatory compensation scheme, in violation of 42 U.S.C. §1981, the Equal Protection Clause, and the New York City Human Rights Law [“NYCHRL”].

In March 2017, the District Court [Schofield, J.] granted summary judgment in favor of NYCHA and the Union, finding that the record contained insufficient evidence of discriminatory animus.

The Circuit Court of Appeals, Second Circuit, affirmed this judgment on appeal [See Wynn v. New York City Hous. Auth., 730 F. App’x 92].

Plaintiffs then filed a second action against the Union [“Wynn II”], this time alleging that the Union violated Title VII, 42 U.S.C. § 2000e et seq., by allowing NYCHA to pay them less than similarly situated white employees.

The District Court dismissed Plaintiffs’ amended complaint under Rule 12[b][6], concluding that their claims were precluded by res judicata. Plaintiffs then filed this timely appeal.

In Wynn II, Plaintiffs seek to hold the Union liable for “acquiesc[ing]” to NYCHA’s allegedly discriminatory compensation scheme. Plaintiffs’ Title VII claims are therefore based on their labor union’s failure to advocate for higher wages, not on their employer’s decision to pay them less than the prevailing wage rate. As a result, Plaintiffs cannot benefit from the Ledbetter Act, which, as this Court and other circuits have recognized, was directed “to a very specific type of claim: that the employer is ‘paying different wages or providing different benefits to similarly situated employees.’”

As the Ledbetter decision specifically dealt with a pay-discrimination claim that was cognizable without regard to other adverse employment actions, the Circuit Court found that the Ledbetter Act’s reference to ‘discrimination in compensation’ was to traditional pay-discrimination claims rather than to a pay reduction that flows from another adverse employment action.”

Accordingly, said the court, the Ledbetter Act does not save Plaintiffs’ Title VII claims from the application of res judicata.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/doc/19-962_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/hilite/