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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, October 17, 2012

A Grievance Is Arbitrable Even After An Employee Dies

8thseal


Union may continue to enforce CBA's mandatory arbitration provision on behalf of worker who died after grievance arose but before arbitration began. Sheet Metal Workers Local No. 2 v. Silgan Containers Mfg. Corp., ____F.3d___(8th Cir. 8/28/12)

October 17, 2012 in Arbitration Law | Permalink | Comments (1)

Sunday, October 14, 2012

Barring a former employee from property and Employee Does Not Have Right To Select Arbitrator

Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Reprinted with permission New York Public Personnel Law

Mitchell Rubinstein

October 14, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Monday, October 1, 2012

Labor Arbitration Agreement Given Collateral Estoppel In Unemployment Case

Matter of Redd v. Commissioner of Labor, ___A.D.3d___(3d Dept. Aug. 2, 2012), is an interesting case. An employee's discharge was upheld by an arbitrator. Those findings were held to be collateral estoppel and disqualifying misconduct. 

Mitchell H. Rubinstein

October 1, 2012 in Arbitration Law, Employment Law | Permalink | Comments (0)

Saturday, June 30, 2012

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

 

Arbitration between Albany Police Supervisor's Assn. and the City of Albany, 2012 NY Slip Op 03704, Appellate Division, Third Department

The Appellate Division affirmed a ruling by Supreme Court denying the Albany Police Supervisor’s Association’s CPLR Article 75 application to vacate an arbitration award and confirmed the award.
A member of the negotiating unit represented by the Association was served with disciplinary charges that eventually resulted in the termination of the member’s employment with the Albany Police Department.
Essentially the member was charged with allegedly failing to inform and misled superior officers about what had transpired with respect to an incident involving another Albany Police Department police officer. The arbitrator found the member guilty of nine of the 14 charges filed against him and concluded that his termination was the appropriate penalty.
In affirming the arbitration award the Appellate Division noted that "In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 wherein the Court of Appeals said that "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice."*
Here, said the court, the arbitrator's findings that member was untruthful when questioned by a superior officer concerning the event is supported by the record and did not result from the arbitrator grossly expanding the charges or other arbitral misconduct.
As to the penalty imposed, dismissal, the Appellate Division rejected the Association’s argument that the penalty was so disproportionate as to constitute arbitral misconduct as "unpersuasive.”
* A court 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 Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03704.htm

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 30, 2012 in Arbitration Law | Permalink | Comments (0)

Thursday, June 14, 2012

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award

 

The Appellate Division succinctly ruled that the application to vacate the arbitration award filed pursuant to Article 75 of the Civil Practice Law and Rules was made more than 90 days after the award was delivered to the individual and is therefore untimely.
The court also noted that although CPLR Article 75 provides a mechanism by which a party may obtain judicial confirmation of an arbitration award, the failure to have an award confirmed is not a ground for vacating the award, citing CPLR §§7510 and 7511[b][1].
Addressing another claim by the individual – that the arbitration award should be vacated under CPLR §751l(b)(1)(iv), “failure to follow the procedure,” the Appellate Division explained that subdivision (iv) address vacating the award because of a "failure to follow the procedure” set out in Article 75. 
However, said the court, if a party applying to vacate the award pursuant to subdivision (iv) continued with the arbitration with notice of the defect and without objection, the award may not be vacated for that reason.
In this instance, said the court, the party seeking to vacate the award under color of §751l(b)(1)(iv) participated in the arbitration without objection as to the procedure employed and thus the award could not be vacated as otherwise permitted by subdivision (iv).
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02949.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 14, 2012 in Arbitration Law | Permalink | Comments (0)

Tuesday, May 29, 2012

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

 

In the Matter of the Arbitration between the Village of Horseheads and the Horseheads Police Benevolent Assn., Inc., 2012 NY Slip Op 02543, Appellate Division, Third Department

The Appellate Division, affirming a lower court’s ruling, said that the role of the court in reviewing an application to stay arbitration is limited. In determining if a particular grievance is subject to arbitration, the court must first determine if the parties may lawfully arbitrate the underlying dispute and, if so, whether they did in fact agree to so arbitrate the issue.

In this instance the Village of Horseheads did not contend that there was a statutory, constitutional or public policy prohibition against arbitrating this particular grievance. Accordingly, the sole issue for the court to determine was whether or not the parties, in accordance with the terms of the collective bargaining agreement, agreed to arbitrate the grievance presented by the Police Benevolent Association. 

The relevant collective bargaining provision, said the court, defined a grievance as "any claimed violation, misinterpretation or inequitable application of existing laws, rules, procedures, regulations, application or enforcement of the terms of this agreement, administrative orders or work orders or rules of [the Village]." 
Whether the Village’s action constituted an actual violation of a rule or regulation "goes to the merits of the grievance [itself], not to its arbitrability," said the court. Accordingly, this was an issue for the arbitrator to resolve. 

In contrast, the Appellate Division emphasized that “For purposes of [its] limited inquiry, it [was] sufficient that [the Association had] asserted a ‘claimed violation’ of certain rules and regulations and that a ‘claimed violation’ is, in turn, subject to the grievance procedure set forth in the CBA “
The decision is posted on the Internet at: 

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

May 29, 2012 in Arbitration Law | Permalink | Comments (0)

Saturday, May 5, 2012

Baseball Player Beats Drug Test

Braun Wins on Appeal is an interesting Feb. 23, 2012 New York Times article. A professional baseball player was suspended for a positive test. He challenged the test in arbitration and won. It appears that Major League Baseball could not establish a proper chain of custody and therefore, could not guarantee that the sample was not tampered with. 

This is a fairly common claim in arbitration, one I have even made. However, arbitrators rarely accept this defense. 

Mitchell H. Rubinstein

May 5, 2012 in Arbitration Law | Permalink | Comments (2)

Thursday, May 3, 2012

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

 

Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.
The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*
Courts, said the Appellate Division, determine arbitrability according to a two-prong test:
1. May the parties arbitrate the dispute and, if so,
2. Whether the parties in fact agreed to do so.
The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:
1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and
2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.
The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.
Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.
In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."
As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.
* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at: http://caselaw.findlaw.com/ny-supreme-court/1055483.html


The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

May 3, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Wednesday, April 18, 2012

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

 

NYC Department of Sanitation v E.L., OATH Index #2107/11
The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 
E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 
The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 
As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 
OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 
In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  
The decision is posted on the Internet at:

 

http://archive.citylaw.org/oath/11_Cases/11-2107.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 18, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (3)

Sunday, April 8, 2012

Reportedly Teacher’s aide challenges Michigan district in arbitration claiming she was suspended for refusing to provide online passwords

According to a news report in the South Bend Tribune, a teacher’s aide is in a legal battle with her school district for suspending her from her position after refusing to give the district access to her Facebook page.  It appears that the matter is headed for arbitration. 

Source: South Bend Tribune, 3/28/12, By Kelli Stopczynski (WSBT TV)

April 8, 2012 in Arbitration Law, Constitutional Law, Current Events | Permalink | Comments (0)

Thursday, April 5, 2012

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

 

Kalyanaram v New York Inst. of Tech., 2012 NY Slip Op 00309, Appellate Division, First Department
The Appellate Division rejected a party to the arbitration assertion that disputes concerning the performance of the remedy provisions of the arbitration award should be determined by the arbitrator as being without merit in this instance.
The court explained that “Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator isfunctus officio, “without power to amend or modify the final award.”
Functus officio means "having performed his office." Where, as here, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

 

April 5, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Tuesday, March 13, 2012

Lawyer Sick Leave Abuse

One of the most common forms of employee discipline involves time and attendance issue; more specifically sick leave abuse. This occorrus, for example, when the employee takes a sick day when he or she is not actually sick.

Well, what if a lawyer "plays' sick to get our of a trial date?? He or she can be in trouble-big trouble as this Jan. 12, 2012 article from Findlaw documents. A judge has threatened to impose a $1,000 fine and contempt of court on a lawyer  for doing just that. The lawyer denies that he abused sick leave or committed any form of misconduct.

Mitchell H. Rubinstein

March 13, 2012 in Arbitration Law, Lawyers | Permalink | Comments (1)

Monday, March 5, 2012

An arbitrator’s power to issue an arbitration award is limited to those powers set out in the collective bargaining agreement

 

Matter of Matter of County of Putnam v Putnam County Sheriff's Employees Assn., Inc., 2011 NY Slip Op 09320, Appellate Division, Second Department
In this CPLR Article 75 action the County asked Supreme Court to vacate an arbitration award. The Sheriff’s Employees Association, on the other hand, cross-petition the court to confirm the award. 
Supreme Court granted the County’s Petition and the Association appealed.
The Appellate Division said that “A court may vacate an arbitration award on the ground that the arbitrator exceeded his power only where the arbitrator's award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.”
Here, said the Appellate Division, Supreme Court properly found that the arbitrator, in effect, “revised, modified, and altered the parties' agreement, which was specifically prohibited by the arbitrator's powers defined in the parties' collective bargaining agreement.”
Thus, ruled the court, Supreme Court properly granted the County’s petition to vacate the award and denied the Association’s cross motion to confirm the award.
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09320.htm

Reprinted by Permission New York Public Personnel Law 

Mitchell H. Rubinstein

March 5, 2012 in Arbitration Law | Permalink | Comments (0)

Thursday, February 23, 2012

Baseball Player Beats Drug Test

Braun Wins on Appeal is an interesting Feb. 23, 2012 New York Times article. A professional baseball player was suspended for a positive test. He challenged the test in arbitration and won. It appears that Major League Baseball could not establish a proper chain of custody and therefore, could not guarantee that the sample was not tampered with. 

This is a fairly common claim in arbitration, one I have even made. However, arbitrators rarely accept this defense. 

Mitchell H. Rubinstein

February 23, 2012 in Arbitration Law | Permalink | Comments (0)

Tuesday, February 21, 2012

Supremes Issue Important Public Policy Decision

Marmet Health Care v. Brown, 565 U.S. ___ (Feb. 21, 2012), is an interesting case. In a relatively short Per Curiam opinion, the Court reverses the decision of the Supreme Court of Appeals of West Virginia which held that that under the FAA all predispute arbitration agreements that apply to claims alleging personal injury or wrong death against nursing homes were unenforcable. 

The Court held that the West Virgina court misread the Supreme Court decisions under the FAA and that "[w]hen this Court fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established." 

What might be of most interest to scholars and lawyers is the Court's statement that the FAA "reflects an emphatic federal policy in favor of arbitral dispute resolution." (citations omitted).

Mitchell H. Rubinstein

February 21, 2012 in Arbitration Law, Supreme Court | Permalink | Comments (0)

Sunday, February 12, 2012

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

 

Matter of Matter of Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, 2011 NY Slip Op 08703, Appellate Division, Third Department
The Civil Service Employees Association had filed a grievance challenging the dismissal of one of the employees in the collective bargaining unit it represented was terminated after failing a random test for drug and alcohol test. The issues that the parties jointly presented to the arbitrator were, "Did [the school district] violate Article IV of the Collective Bargaining Agreement [CBA] when it terminated [the employee]? If so, what shall the remedy be?"
The arbitrator determined that employee had tested positive for marijuana, but that the school district had violated the CBA by terminating her. As a remedy, the arbitrator directed that the employee be reinstate, without back pay, but required that she comply with follow-up drug and alcohol testing and an evaluation by a substance abuse professional.
Supreme Court granted the Shenendehowa Central School District’s Article 75 petition seeking vacate an arbitration award thereby “reinstating the employee’s termination.”

The Appellate Division disagreed, ruling that the award was not against public policy was rational, and in making the award the arbitrator did not exceed his powers, holding that “Supreme Court should have confirmed the arbitration award.”
The Appellate Division explained that “If a matter is submitted to arbitration, reviewing courts should not interpret substantive conditions of the agreement or delve into the merits of the dispute.” Citing Matter of Grasso, 72 AD2d 1463 [Leave to appeal denied, 15 NY3d 703], the court said that "Courts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts, but a court may vacate an award" where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, the Appellate Division stated that "[W]here an agreement is 'reasonably susceptible of the construction given it by the arbitrator, a court may not vacate the award," citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979.
Underlying the school district’s decision to terminate the employee was its assertion that it had “a zero tolerance policy concerning positive drug tests, thereby mandating discharge.” However, said the court, no such written policy was produced in evidence. Rather, the school district’s written drug testing policy states that a violation "shall be grounds for disciplinary action including, but not limited to, fines, suspension and/or discharge."
Here, said the Appellate Division, the arbitrator reasoned that the school district did not have a written zero tolerance policy. When read in conjunction with the CBA, the district’s policy “permitted either suspension without pay or discharge after a positive drug test result.”
The arbitrator, the court found, determined that school district had violated the CBA by refusing to consider the disciplinary options provided for in petitioner's own policy and the CBA, instead imposing the penalty of discharge as if it were mandatory.
According to the decision, if the school district intended to implement a zero tolerance policy, it could and should have negotiated with CSEA to include such mandatory language in the CBA. Not having done so, petitioner must abide by the language actually negotiated for and agreed upon with CSEA.
Having determined that the school district had violated the CBA, the arbitrator — who was permitted by the parties' statement of the issues to determine a remedy — then found the appropriate penalty for respondent to be reinstatement without back pay, which equated to a suspension of approximately six months without pay, a rational result and with the powers granted to the arbitrator.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

February 12, 2012 in Arbitration Law, New York Law | Permalink | Comments (2)

Wednesday, December 21, 2011

Under FAA, even if error of law occurred, an arbitration will not be vacated

7thCir
The Seventh Circuit held that an error of law, no matter how egregious, is not grounds for a court to vacate an arbitration award under the Federal Arbitration Act or FAA.   In Affymax, Inc. v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., et al., ___F.3d____(7th Cir. Oct. 3, 2011), the Seventh Circuit reversed the lower court which vacated a portion of the award. 

The District Court found that the arbitrators “manifestly disregarded the law” because they did not discuss or provide analysis for the basis of a portion of their award.  In noting that the FAA provides an exclusive list of reasons for which an arbitration award can be vacated, the Seventh Circuit clarified that a legal error, even one rising to the level of manifest disregard, made by an arbitrator is not a basis for vacating an arbitration award. 

Mitchell H. Rubinstein

December 21, 2011 in Arbitration Law | Permalink | Comments (0)

Monday, December 19, 2011

Union employee's Title VII and ADEA claims were dismissed because they were subject to mandatory arbitration under collective bargaining agreemen

Veliz v Collins Bldg Svs, Inc, ___F.Supp.2d___(S.D.N.Y., September 26, 2011) is an intersting Pyett type of case. A discharged union employee of Peruvian origin was unable to proceed with his Title VII and ADEA claims of national origin and age bias and reprisal because his claims were subject to mandatory arbitration under the applicable collective bargaining agreement. The court dismissed the employee’s Title VII and ADEA claims against several individual defendants because individuals cannot be held liable under either statute.

Mitchell H. Rubinstein

December 19, 2011 in Arbitration Law | Permalink | Comments (0)

Tuesday, December 6, 2011

National Academy of Arbitrators Produces Educational DVD

The National Academy of Arbitrators have produced an educational video which is available for $35.00. It is a just cause arbitration. A flyer describes the fact pattern as follows:

The DVD captures an instructive and entertaining session from the Academy’sannual meeting in San Diego in May 2011. The subject of the arbitration is the dismissal of a 20-year old soda delivery driver who finds $400 on his route, keepsthe money for himself, but then turns it over when his supervisor asks about themissing money at the end of the day. The DVD includes direct and crossexaminationof a witness, and closing arguments, by skilled counsel. Decisionsare then rendered by a panel of experienced arbitrators from the US and Canada,and by a system board of adjustment from the airline industry. Those in the audience attending the session also had an opportunity to decide the dispute.

The complete flyer with purchase information is available Download NAA-SanDiego.2011.MissingMoney.MarketingAnnouncement[12-1-11] (1).

Hat Tip:  Barry Winograd

 

December 6, 2011 in Arbitration Law | Permalink | Comments (0)

Thursday, November 3, 2011

Arbitrator Has No Obligation To Explain The Reasoning Behind His/Her Award

Azordegan v. Ebrahimi, 2011 WL 3370450 (Ga. Ct. App. August 5, 2011) is an interesting case where the court held that the  FAA does not obligate an arbitrator to explain the reasoning behind an award, nor make written findings of fact in support of the award.  

November 3, 2011 in Arbitration Law | Permalink | Comments (0)