When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

Matter of City of Rochester (Rochester Police Locust Club), 2015 NY Slip Op 08580, Appellate Division, Fourth Department

Supreme Court granted the City of Rochester’s [Rochester] CPLR Article 75 application to vacate an arbitration award in favor of the Rochester Police Locust Club [Union]. The Union appealed but the Appellate Division affirmed the Supreme Court’s ruling.

The genesis of the grievance leading to the arbitration was a determination by Rochester denying a police sergeant's request for a vehicle to use on the job and take home. The Unionfiled on behalf of the sergeant and ultimately the arbitrator issued an award directing Rochester to provide the sergeant with a vehicle. The arbitrator ruled that the arbitrator Rochestermust provide the sergeant with a take-home vehicle “based solely on the [Rochester’s] past practice, which included providing such a vehicle to the two predecessors in his position.”

In sustaining the Supreme Court’s decision vacating the arbitration award the Appellate Division noted that the provision in the collective bargaining agreement governing arbitration provided, in relevant part, that "[t]he authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no power or authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written."

Citing Buffalo Teachers Federation v Board of Education, 50 AD3 1503, the court observed that "It is well settled that an arbitration award may be vacated if it exceeds a specifically enumerated limitation on an arbitrator's power [and that] an arbitrator exceeds his or her authority by granting a benefit not recognized under a governing collective bargaining agreement."

In this instance the Appellate Division said that the controlling provision was contained in a memorandum of agreement between Rochesterand the Union. This provision required Rochester to provide a vehicle to police "investigator[s] who are assigned to the Major Crimes Unit."

There was no question that the sergeant who had requested the vehicle was not an investigator nor was he assigned to the Major Crimes Unit. Notwithstanding this, the arbitrator concluded that Rochester must provide him with a take-home vehicle based solely on Rochester’s past practice, which included providing such a vehicle to the two predecessors in the Sergeant’s position.

This, said the court, was error explaining that although past practices may be considered by an arbitrator when interpreting a specific contractual provision, an arbitrator may not rewrite a contract by adding a new clause based upon a past practice.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08580.htm

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Reed v Department of Educ. of the City of N.Y., 2015 NY Slip Op 09193, Appellate Division, First Department

Supreme Court, New York County dismissed Lisa Reed's the petition seeking to vacate and, or, modify the opinion and award that resulted in the termination of Reed’s employment as a tenured teacher with the New York City Department of Education. The Department had served charges and specification pursuant to Education Law §3020-a on Reed alleging that she was “incompetent and ineffective during three school years.”

Reed appealed the Supreme Court’s ruling but the Appellate Division affirmed the lower court decision, noting that the charges filed against Reed were supported by adequate evidence showing that she had failed to plan and execute lessons, as observed on multiple enumerated dates.

The Appellate Division also said that ‘The evidence shows that [Reed] continually refused to accept responsibility for her failure to deliver effective instruction. In particular, she failed to implement the school administration's professional development recommendations with regard to lesson planning preparation and execution, proper pacing of lessons, ensuring students stay on task, and assessing students' progress, among other things.”

As to the penalty imposed on Reed by the Department, termination, the court said that dismissing Reed from her position “does not shock [its] sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09193.htm

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Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Matter of Civil Serv. Empls. Assn., Inc. (Board of Educ. of Syracuse City Sch. Dist.), 2015 NY Slip Op 08570, Appellate Division, Fourth Department

An arbitrator, following a hearing, determined that the Syracuse City School District [District] had violated the collective bargaining agreement between it and the Civil Service Employees’ Association [CSEA] when it terminated the employment of one of the employees in the negotiating unit represented by CSEA. The arbitrator directed the District to [1] reinstate the employee to his former position; [2] credit him with the seniority to which he would have been entitled had his employment not been wrongly terminated; and [3] pay him "back pay for the salary and other benefits [he] lost as a result of [his] improper termination," retroactive to 30 days before he filed his grievance.

CSEA initiated a CPLR Article 75 proceeding to confirm an arbitration award in its favor while the District cross motioned the court to vacate the award contending that the award is not final and definite, and thus subject to vacatur  because the arbitrator did not specify whether it was entitled to an offset based on funds the employee had received following his termination from unemployment insurance and other employment.

The Appellate Division rejected the District’s contention explaining that “An arbitration award is nonfinal or indefinite "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy" and sustained the arbitration award.

In this instance, said the court, the award sufficiently defined the parties' rights and obligations notwithstanding its failure to address the offset issue. As to the District’s argument regarding the “offset” it claimed, the court said that there was no indication in the record that the District asked the arbitrator for such an offset at the hearing and, although the arbitrator retained jurisdiction "with respect to the remedy” for about six weeks after the award was rendered, the District did not seek clarification of the award regarding such an offset during that period.

On another issue -- Supreme Court’s awarding CSEA attorneys' fees as a sanction for the District’s “frivolous conduct” -- the Appellate Division said the Supreme Court had made the award without issuing a written decision setting out the “frivolous conduct” on which the award is based and the reasons why the court found such conduct to be "frivolous." Accordingly, the Appellate Division modified the Supreme Court’s order by vacating its award of attorneys' fees.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08570.htm