Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, November 3, 2012

Arbitration award sustained as it was rational and did not violate public policy

Addressing the employer’s challenge to an arbitration award, the Appellate Division determined that the arbitrator “properly found” there was no "emergency" within the meaning of the collective bargaining agreement [CBA] that justified bypassing the contract's terms regarding assignment of personnel. 
Further, said the court, the award merely enforced the terms of the parties' CBA, which already addressed the public policy issues that the employer raised in this appeal.
The award in this case, said the court, was not "totally" irrational, nor did it violate public policy. 
The Appellate Division explained that the arbitrator did not exceed her powers in making the award as the contract language relied upon by the employer “does not address the situation at issue in this matter.”
In addition, the court noted that the employer “itself requested relief that was not specified in the relevant contract language, and therefore cannot now be heard to say that the award exceeded the scope of the arbitrator's authority.” 

Accordingly, the Appellate Division denied the employer's petition to vacate the arbitration award.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 3, 2012 | Permalink | Comments (1)

Thursday, November 1, 2012

Walk Outs At Walmart

Reportedly, there have some been some walkouts at Walmart over working conditions. Though the devil is in the details, my students all know that if the walk out is over working conditions and if the employees are not being disloyal, there actions very well might be protected under Section 7 of the NLRA, notwithstanding the fact that Walmart is largely unorganized. Section 7 does not only apply to unionized employers.

Mitchell H. Rubinstein

November 1, 2012 in Labor Law | Permalink | Comments (1)

Wednesday, October 31, 2012

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.
The Appellate Division affirmed the lower court’s ruling, explaining that::
1. The school and the school district failed to make a prima facieshowing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and
2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”
The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”
Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York84 NY2d 44
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

October 31, 2012 in Education Law | Permalink | Comments (0)

Tuesday, October 30, 2012

11th Circuit Issues Major NLRA Supervisor Decision


The Eleventh Circuit  held that the National Labor Relations Board lacked substantial evidence to support its conclusion that licensed practical nurses at a Florida nursing and long-term care facility were employees rather than supervisors. Lakeland Health Care Assocs. v. NLRB, ___F.3d___( 11th Cir., No. 11-12000, 10/2/12).

Finding NLRB improperly certified a United Food and Commercial Workers Union as the bargaining representative for a unit of LPN team leaders, the majority stated that the board “meticulously excluded or disregarded” evidence indicating the LPNs were supervisors outside the protection of the NLRA.

Dissenting, Judge William H. Pryor said the court's own precedents precluded it from “reweighing the evidence” relied on by the board. 

Mitchell H. Rubinstein

October 30, 2012 in NLRB | Permalink | Comments (1)

Monday, October 29, 2012

Bankruptcy Does Not Distinguish Money Owed To Unemployment

Matter of DeGregorio v. Commissioner of Labor, ____A.D.3d ___(3d Dep't. Oct. 10, 2012). As the court stated:

Contrary to the petitioner's argument, her discharge in bankruptcy did not affect her liability for underpaid or unpaid unemployment insurance contributions (see 11 USC §§ 507[a][8][D], [E]; 523[a][1][A]; Matter of Pierce, 935 F2d 709, 711 [5th Cir]; In re The Albert Lindley Lee Mem. Hosp., 428 BR 283 [ND NY]; In re McAdam, 402 BR 473, 478-482 [D NH]; In re Cottage Grove Hosp., 265 BR 241, 244-247 [D Or]; In re Mueller, 243 BR 346, 349 [WD Wis]; Matter of Ward, 119 Misc 2d 930, 930; Matter of Parisi, 8 Misc 2d 260, 260-261; 4 Collier on Bankruptcy ¶ 507.11[5], [6], [8][b] and n 96 [16th ed 2012]; Andrew M. Campbell, Annotation, Exception from Discharge of Taxes under § 523[a][1] of Bankruptcy Code [11 USC § 523(a)(1)], 145 ALR Fed 1, § 16[d]).


Mitchell H. Rubinstein

October 29, 2012 in Employment Law | Permalink | Comments (1)

Sunday, October 28, 2012

Vacating a finding of being guilty of two of five disciplinary charges requires remanding the matter for reconsideration of the appropriate penalty to be imposed

The appointing authority adopted the findings and recommendation of a hearing officer that the employee was guilty of five charges of misconduct and terminated the individual’s employment.
Supreme Court dismissed the former employee’s petition challenging the appointing authority’s action.
The Appellate Division disagreed with this result, explaining that upon its review of the record it found that  the hearing officer's finding the individual guilty of two of the five charges had to be annulled and those two charges dismissed. In the opinion of the court, there was a lack of substantial evidence to support a finding that the employee was guilty of these two charges.
As the appointing authority had imposed a penalty based on the hearing officer’s finding that the individual was guilty of all five charges, the court said that the penalty imposed had to be vacated and the matter remit to the appointing authority to permit it to consider the appropriate penalty to be imposed upon the individual based on the individual having been found guilty of the three surviving charges
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 28, 2012 in Public Sector Employment Law | Permalink | Comments (0)