A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed

A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposedMatter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall. The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal – to be inappropriate. Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work. The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator's award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson's employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal. Supreme Court, rather than grant Youth's petition, granted the Civil Service Employees Association's motion to confirm the award and Youth appealed. Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court's judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court's disposition of the matter. As to Youth's argument that the "public policy exception" should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue." Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement." In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record." In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth's care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work." The Appellate Division, acknowledging Youth's reluctance to continue Jackson's employment was understandable, ruled that "the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to 'second-guess' the factual or legal determinations of the arbitrator." The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm .

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