Seeking to vacate an arbitrator's award on the ground that it was issued in excess of the arbitrator's power.

In this action seeking to vacate an arbitration award, the employer contended that the arbitrator had exceed his powers in adjudicating the grievance when he:

1. Determined the grievance to be arbitrable; and 

2. Concluded, among other things, that the grievant was entitled to the benefits claimed.

The Appellate Division opined that in the event a "reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA," the matter is arbitrable", sustaining the arbitrator's decisions.

Matter of County of Onondaga (Civil Serv. Empls. Assn., Inc.)

2023 NY Slip Op 03599

Decided on June 30, 2023

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 30, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, JJ.

329 CA 22-00889

IN THE MATTER OF ARBITRATION BETWEEN COUNTY OF ONONDAGA, PETITIONER-RESPONDENT, AND

and

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ONONDAGA COUNTY LOCAL 834, RESPONDENT-APPELLANT.

DAREN J. RYLEWICZ, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ALBANY (STEVEN M. KLEIN OF COUNSEL), FOR RESPONDENT-APPELLANT.

BOLANOS LOWE, PLLC, PITTSFORD (KYLE W. STURGESS OF COUNSEL), FOR PETITIONER-RESPONDENT.

 

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered May 12, 2022. The order, insofar as appealed from, granted in part the petition to vacate an arbitrator's award.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the petition is denied in its entirety.

Memorandum: Petitioner, County of Onondaga, commenced this proceeding to vacate an arbitrator's award pursuant to CPLR 7511 (b) (1) (iii) on the ground that it was issued in excess of the arbitrator's power. During the underlying arbitration, the arbitrator determined a grievance to be arbitrable and concluded, among other things, that the grievant was entitled to claim benefits under an applicable New York law for November 17-18, 2020. Supreme Court granted the petition in part, vacating that portion of the arbitrator's award with regard to November 17-18, 2020, on the ground that the arbitrator "erroneously" found the matter to be arbitrable and thus exceeded his authority in interpreting the application of statutory entitlements. Respondent, Civil Service Employees Association, Inc., Onondaga County Local 834, now appeals from the order to that extent, and we reverse the order insofar as appealed from and deny the petition in its entirety.

"[J]udicial review of arbitration awards is extremely limited" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]). Generally, courts " 'may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power' " (Matter of Syracuse City Sch. Dist. [Gilbert], 192 AD3d 1643, 1644 [4th Dept 2021], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]).

We agree with respondent that the arbitrator did not exceed his authority when he determined the matter to be arbitrable. The parties' collective bargaining agreement (CBA) defines a grievance as a "claimed violation, misinterpretation or an inequitable application of a specific and express term of [the CBA]." Here, the grievance dealt with an alleged inequitable application of the grievant's leave accruals. We conclude that a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA and the matter is arbitrable (see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]). Notably, the parties included a Conformity to Law provision in the CBA, whereby the CBA and its provisions "are subordinate to any present or future Federal or New York State laws and regulations" (emphasis added).

We conclude that the arbitrator's review of relevant state law did not exceed "a specifically enumerated limitation on [his] power" (Syracuse City Sch. Dist., 192 AD3d at 1644).

Entered: June 30, 2023

Ann Dillon Flynn

Clerk of the Court

New York State Department of Civil Service memorandum and bulletin issued during the week ending June 30, 2023

The New York State Department of Civil Service has posted the items  listed below on the Internet at the URLs indicated in COLOR below:

1.  Transmittal Memorandum No. 49, 2024 Calendar of Legal Holidays and Days of Religious Significance:

    Text of Transmittal Memorandum No. 49 will be found at:
https://www.cs.ny.gov/attendance_leave/TM_49.cfm

    Transmittal Memorandum No. 49 in a version in PDF format is posted at:
https://www.cs.ny.gov/attendance_leave/TM49.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

2. General Information Bulletin 23-03, Civil Service Exam Fee Waiver:

     Text of General Information Bulletin 23-03 will be found at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB23-03.cfm.

      General Information Bulletin 23-03 in a PDF format is posted at:
https://www.cs.ny.gov/ssd/pdf/GIB23-03.pdf.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm

 

The public policy of the State of New York for firefighters is that disciplinary procedures are terms and conditions of employment subject to mandatory negotiation under the Taylor Law

Matter of Local 32 Intl. Assn. of Firefighters, AFL-CIO, Utica Professional Firefighters Assn. v New York State Pub. Empl. Relations Bd.

2023 NY Slip Op 03383

Decided on June 22, 2023

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 22, 2023

535052

In the Matter of Local 32 International Association of Firefighters, AFL-CIO, Utica Professional Firefighters Association, Appellant,

v

New York State Public Employment Relations Board et al., Respondents.

Calendar Date:May 4, 2023
Before: Garry, P.J., Egan Jr., Clark, Reynolds Fitzgerald and Ceresia, JJ.

Blitman & King LLP, Syracuse (Nathaniel G. Lambright of counsel), for appellant.

New York State Public Employment Relations Board, Albany (Ellen M. Mitchell of counsel), for New York State Public Employment Relations Board, respondent.

William M. Borrill, Corporation Counsel, Utica (Joseph V. McBride of counsel), for City of Utica, respondent.

In June 2016, petitioner filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging that respondent City of Utica, a second class city, violated multiple sections of Civil Service Law article 14 (hereinafter the Taylor Law) by unilaterally changing past practices related to disciplinary interrogations of City firefighters. Following administrative review, PERB concluded that it was constrained to follow Matter of City of Schenectady v New York State Pub. Empl. Relations Bd. (30 NY3d 109 [2017]), in which the Court of Appeals held that police discipline was a prohibited subject of bargaining for cities covered by the Second Class Cities Law (id. at 115-116). In doing so, PERB rejected petitioner's argument that firefighters were differently situated from police officers and, thus, the policy considerations in Matter of City of Schenectady, and the line of cases upon which it relied, were inapposite. Petitioner then commenced this CPLR article 78 proceeding to annul PERB's determination, which respondents moved to dismiss. Supreme Court granted that motion, agreeing with PERB that the disciplinary provisions of the Second Class Cities Law apply with equal force to both police officers and firefighters. Petitioner appeals.

During the pendency of this appeal, the Legislature enacted the New York State Firefighter Bill of Rights Act (L 2022, ch 674), which amended both the Taylor Law and Civil Service Law § 75, addressing removal of and other disciplinary action against public employees. The Senate Introducer's memorandum in support of the bill recognized that "court decisions have noted that . . . several statutes contain[ ] provisions favoring the local control of police and fire discipline that would override the Taylor Law presumption of negotiability," and, against that backdrop, the Legislature saw it necessary to "declare it to be the public policy of the State of New York that[,] for firefighters, disciplinary procedures are terms and conditions of employment subject to mandatory negotiation under the Taylor Law" (Senate Introducer's Mem in Support of 2022 NY Senate Bill S8481, enacted as L 2022, ch 674). The act thus amends the aforementioned statutes accordingly (see Civil Service Law §§ 75 [2-a]; 201 [4]; 204-a [4]). Although, as the City aptly notes, the act expressly states that it applies to proceedings commenced on or after March 1, 2023 (see L 2022, ch 674, § 5), PERB asserts that this newly promulgated legislation directly impacts its analysis and has asked this Court to remit this matter to it for a new determination. Acknowledging these somewhat unusual circumstances, petitioner has agreed that remittal is appropriate. In light of the foregoing, we grant PERB's request and remit the matter to it for further proceedings.

Egan Jr., Clark, Reynolds Fitzgerald and Ceresia, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, determination annulled, and matter remitted to respondent Public Employment Relations Board for further proceedings not inconsistent with this Court's decision.

 

 

US Supreme Court - free speech - 303 Creative LLC et al. v Elenis et al.

Click HERE to access the Syllabus and full text of the Supreme Court's decision in 303 CREATIVE LLC ET AL . v. ELENIS ET AL., handed down on June 30, 2023.

Certain types of records are exempt from disclosure pursuant to Public Officers Law §87

The  County's Office of the District Attorney [ODA] declined to provide Plaintiff with certain records pursuant to New York State's Freedom of Information Law [FOIL]* relating to a female witness who was the victim of a sex offense.

Plaintiff then commenced a proceeding pursuant to CPLR Article 78 seeking a court order compelling the ODA to produce the records demanded. Supreme Court, agreeing with ODA contention that the records sought by Plaintiff were "exempt from disclosure" pursuant to both Public Officers Law §87(2)(a) and Public Officers Law §87(2)(e)(i), denied Plaintiff's petition and dismissed the proceeding, .

Plaintiff appealed Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision noting that with regard to the records requested by the Plaintiff relating to a female witness who was the victim of a sex offense, ODA had satisfied its burden of establishing that the records demanded were exempt from disclosure pursuant to Public Officers Law §87(2)(a).

The decision notes that:

1. "All government records are presumptively open for public inspection unless specifically exempt from disclosure," citing Matter of Crowe v Guccione, 171 AD3d 1170;

2. "Public Officers Law §87(2)(a) provides that an agency may deny access to records that are specifically exempted from disclosure by state or federal statute" (see Matter of Crowe v Guccione, supra); and

3. "Civil Rights Law §50-b(1) provides a statutory exemption from disclosure for documents that tend to identify the victim of a sex offense", noting Matter of Karlin v McMahon, 96 NY2d at 843.

The Appellate Division further observed that ODA "also satisfied its burden of establishing that all of the requested records were exempt from disclosure pursuant to Public Officers Law §87(2)(e)(i).** 

Here, opined the court, Plaintiff had made a "particularized FOIL request," and the ODA had demonstrated a risk associated with such disclosure that would adversely interfere a pending habeas corpus proceeding.

Other limitations on the release of some public records by statute include Education Law, §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records; confidentiality. For links to selected FOIL decision summaries posted by NYPPL click HERE.

* See Public Officers Law Article 6.

** Public Officers Law §87(2)(e)(i) provides that an agency may deny access to records that 'are compiled for law enforcement purposes only to the extent that disclosure would interfere with law enforcement investigations or judicial proceedings" by demonstrating a valid basis for denial of the Plaintiff's FOIL request, and establishing that the records sought were exempt from disclosure pursuant to §87(2)(e)(i).

Click HERE to access the Appellate Division's decision posted on the Internet.