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Although Picketing by Teachers Was Protected Speech, the Manner in which the Picketing Was Carried Out Endangered the Safety of Students—Therefore the Teachers Were Properly Disciplined

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with concurring and dissenting opinions, reversed the Appellate Division and found that teachers had been properly disciplined for picketing in their cars in a manner which made it more difficult for parents to drop off their children at the school.  The court applied the so-called Pickering test (Pickering v Board of Educ…391 US 563 [1968]) which addresses the free speech rights of public employees (which are somewhat curtailed).  Under the court's Pickering analysis, the picketing was protected speech, but the manner in which the picketing was done endangered the students. The teachers, therefore, could be disciplined for the manner in which they exercised their right to free speech:

Under Pickering, the determination whether a public employer has properly disciplined a public employee “for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public] . . . employer, in promoting the efficiency of the public services it performs through its employees'” … . This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively …, but also that “[v]igilance is necessary” to ensure public employers do not use their authority “to silence discourse[] not because it hampers public functions but simply because superiors disagree with the content of [the] employees' speech” … . Matter of Santer v Board of Educ of E Meadow Union Free Sch Dist, 2014 NY Slip Op 03189, CtApp 5-6-14

 

Court’s Arbitration-Award Review Powers Explained

The Second Department determined the petition to vacate the arbitration award was properly denied. The court explained its review powers:

“Judicial review of an arbitrator’s award is extremely limited” … . “A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden,’ and must establish a ground for vacatur by clear and convincing evidence” … . An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) an arbitrator who exceeded his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511[b]). An arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iii) where “an arbitrator . . . exceeded his or her power,” which includes those circumstances in which the award “violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … .

The petitioner’s contention that the arbitration award dated August 14, 2012, was against public policy is without merit. “An arbitration award violates public policy only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state” … . Matter of County of Nassau v Patalano, 2015 NY Slip Op 03837, 2nd Dept 5-6-15

 

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Interest Pursuant to CPLR 5002 and 5003 Is a Matter of Right Not Dependent Upon the Court’s Discretion or a Demand

The Second Department noted that the defendant who had obtained an arbitration award was entitled to interest on the award pursuant to CPLR 5002 and 5003:

…[P]ursuant to CPLR 5002, the defendant was entitled to prejudgment interest from the date of the arbitration award, April 28, 2009 … . “Interest under CPLR 5002 is a matter of right and is not dependent upon the court’s discretion or a specific demand” … . It “is simply the cost of having the use of another person’s money for a specified period” and is not a penalty on the party owing money … . Accordingly, the defendant was entitled to prejudgment interest accruing from the date of the arbitration award, and to postjudgment interest pursuant to CPLR 5003. Dermigny v Harper, 2015 NY Slip Op 02722, 2nd Dept 4-1-15

 

Arbitrator Exceeded Her Powers to Modify an Award and Failed to Make a “Final and Definite” Award

The Third Department determined the arbitrator had exceeded her authority when she did not merely correct a miscalculation, but rather made new findings when modifying an award.  The court further determined that the arbitrator initially did not make a “final and definite” award when she failed to take into account a stipulation between the parties:

…[T]he arbitrator’s modification of the original award exceeded the narrow grounds set forth in CPLR 7511 (c). A review of the modified award reveals that the arbitrator did not simply correct a “miscalculation of figures . . . in the [original] award” (CPLR 7511 [c] [1]) but, rather, made new factual findings as to the applicability of the parties’ apparent stipulation relative to petitioner’s counterclaim and its corresponding impact upon the moneys awarded, i.e., the arbitrator impermissibly revisited the merits of the parties’ dispute. Under these circumstances, the modified award was properly vacated … .

We also are persuaded that Supreme Court properly vacated the original arbitration award and remanded the matter to the arbitrator for a rehearing (see CPLR 7511 [d]). CPLR 7511 (b) (1) (iii) permits a court to vacate an arbitration award if the court finds that a party’s rights were prejudiced because the arbitrator, in making such an award, either “exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.” Although we find no basis upon which to conclude that the arbitrator exceeded her authority in rendering the initial award, we agree with Supreme Court that, by failing to address the existence and/or content of the parties’ purported stipulation, ascertain whether the contested funds were in fact withheld by petitioner prior to the start of the arbitration and assess the corresponding impact, if any, upon petitioner’s counterclaim, the arbitrator “so imperfectly executed” her powers that “a final and definite award” was not in fact made (CPLR 7511 [b] [1] [iii]). Matter of Delaney Group, Inc. (Holmgren Enters., Inc.), 2015 NY Slip Op 02174, 3rd Dept 3-19-15

 

Complaint Should Not Have Been Dismissed Solely Upon the Determination an Arbitration Clause Was Valid and Applicable

The Second Department determined Supreme Court should not have dismissed an action bases solely on the fact the contract between the parties had an arbitration clause.  Dismissal pursuant to CPLR 3211(a)(1) lies only if there has been arbitration and award:

In its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, the defendant … contended that an arbitration clause contained in its contract with the plaintiff was valid and applicable, and, therefore, required dismissal of the complaint insofar as asserted against it. However, “[i]n the absence of arbitration and an award, CPLR 3211 furnishes no basis for a dismissal because of the presence in the contract of an arbitration provision” … . Accordingly, the Supreme Court erred in granting the motion of the defendant New Clients, Inc., pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it based solely upon its determination that the arbitration clause was valid and applicable. Hui v New Clients, Inc., 2015 NY Slip Op 01924, 2nd Dept 3-11-15

 

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Longevity-Pay Grievance Not Arbitrable Under Terms of Collective Bargaining Agreement/Analytical Criteria Explained

The Second Department determined that, under the terms of the collective bargaining agreement (CBA), the grievance (re: longevity pay) was not arbitrable.  The court outlined the analytical criteria:

“The determination of whether a dispute between a public sector employer and employee is arbitrable is subject to [a] two-prong test” … . “Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance” … . “If there is no prohibition against arbitrating, the court must examine the parties’ collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute” … .

Here, the County did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy. Thus, the only issue is whether the parties agreed to arbitrate the particular dispute … .

“Unlike general labor disputes in the private sector involving arbitration, the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed” … . “Indeed . . . it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the [parties to a collective bargaining agreement] did not intend to refer differences which might arise to the arbitration forum” … .

Here, contrary to the Union’s contention, the CBA did not broadly provide for the arbitration of any grievance that may arise under the CBA … . Rather, as the Supreme Court correctly concluded, the CBA limited the availability of arbitration to specifically enumerated matters … .  Matter of County of Rockland v Corr. Officers Benevolent Assn. of Rockland County, Inc. 2015 NY Slip Op 01798, 2nd Dept 3-4-15

 

Criteria for Vacation of an Arbitration Award Explained (Not Met Here)

The Second Department explained the criteria for vacation of an arbitration award:

A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a “heavy burden” … , and must establish a ground for vacatur by clear and convincing evidence … . An arbitration award must be vacated if a party’s rights were impaired by an arbitrator who “exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511[b][1][iii]). An arbitrator exceeds his or her power where the “award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . An award will be vacated as 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 … . Matter of Quality Bldg Constr LLC, 2015 NY Slip Op 01643, 2nd Dept 2-25-15

 

Analytical Criteria for Confirmation of an Arbitration Award Described

The Second Department explained the analytical criteria for confirmation of an arbitration award.  The court noted that an arbitrator does not have the power to award punitive damages:

“The court shall confirm an award upon application of a party made within one year after its delivery to him [or her], unless the award is vacated or modified upon a ground specified in section 7511” (CPLR 7510). “An arbitration award is indefinite or nonfinal for purposes of CPLR 7511 and subject to vacatur 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'” … . “An award is final and definite if the computation of the award is so clear and specific that the determination of the amounts owing is merely an accounting calculation” … . Matter of Olidort v Pewzner, 2015 NY Slip Op 01278, 2nd Dept 2-11-15

 

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Whether Arbitrator Erred In Applying the Applicable Law Is Beyond the Courts’ Review Powers

In affirming the arbitrator's award re: no-fault benefits, the Second Department explained the courts' limited review powers (re: arbitration awards):

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” … . Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator's award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis … . “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” … . Matter of Allstate Ins v Westchester Med Group, 2015 NY Slip Op 00876, 2nd Dept 2-4-15


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Custody and Visitation Can Only Be Determined by a Court—Custody and Visitation Arbitration-Award Invalid/However Child Support Can Be the Subject of Arbitration

The Second Department determined Supreme Court should not have confirmed the arbitration award to the extent the award dealt with custody and visitation.  Custody and visitation can be addressed only in the courts.  However, Supreme Court properly confirmed the arbitrator’s child support award, as there was no showing the award failed to comply with the Child Support Standards Act:

Although the parties consented to arbitration of custody and visitation matters, they had no power to do so. “Disputes concerning child custody and visitation are not subject to arbitration as the court’s role as parens patriae must not be usurped'” … . Accordingly, that branch of the petition which was to confirm the custody and visitation provisions of the arbitration award should have been denied, and the matter must be remitted to the Supreme Court, Kings County, for a hearing and determination as to the issues of custody and visitation … .

An arbitration award concerning child support may be vacated on public policy grounds if it fails to comply with the Child Support Standards Act (Domestic Relations Law § 240[1-b]; hereinafter the CSSA) and is not in the best interests of the children … . Here, the father failed to demonstrate that the award of child support was incompatible with the objectives of the CSSA and that it was not in the best interests of the children. Matter of Goldberg v Goldberg, 2015 NY Slip Op 00539, 2nd Dept 1-21-15

 

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