New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Lorrainer C. Brady v The Williams Capital Group, L. P.

In this Article 78 case, the question is whether the petitioner was financially capable of sharing arbitration fees and costs.

In 1999, the respondent hired petitioner to sell fixed income securities. As a requirement for the position, petition needed to complete a Uniform Application for Securities Industry Registration to Transfer in order to become registered with the National Association of Securities Dealers (NASD). Upon registration, petitioner was no subject to the NASD rules.

In 2000, respondent created an employee manual and each employee was required to sign and follows and condition set aside in the manual. The employee manual included a “Mutual Agreement to Arbitrate Claims,” which states that all disputes will be arbitrated and each party will equally share the fees and costs of the arbitrator.

Approximately five years later, in February 2005, petitioner was terminated from her position at The Williams Group. Following her termination, petitioner filed a discrimination complaint with the New York State Division of Human Rights. However, eight months later, before a decision was made, petitioner withdrew her complaint. In December of the same year, petitioner filed a Demand for Arbitration with American Arbitration Association. She was seeking money damages against the respondent. Petitioner claimed that her termination of employment at the Williams Group was in violation of her Civil Rights.

According to the AAA rules, employers were required to pay all arbitration fees. Therefore, AAA decided on behalf of the petitioner and sent an invoice for $42,300 to the respondent. Respondent refused to pay the entire amount due to the Williams Group arbitration agreement in the employees’ manual.

Pursuant to Article 78, petitioner sought to force respondent to pay the fees or to force AAA to issue a judgment on respondent for failure to cooperate.

The Appellate Division sided with the petitioner because they found that respondent “equal share” provision in the agreement was “unenforceable as against public policy.” However, now the petitioner has the burden of showing that she withdrew her initial petition on the grounds that the fees were discouraging to continue the arbitration.

Respondent appealed on the grounds that petitioner was financially capable of paying half of the fees, at the time of the filing the complaint.

Order modified, without costs, by remitting to Supreme Court, New York County, for further

proceedings in accordance with the opinion herein and, as so modified, affirmed.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

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Matter of Bridge & Tunnel Officers Benevolent Association v Triborough Bridge & Tunnel Authority

In January 2005, the Bridge and Tunnel Officers Benevolent Association changed its policy and required employees to substitute paid annual leave for FMLA leave. Prior to this, petitioner allowed employees to choice whether to take FMLA leave paid or unpaid. The Triborough Bridge and Tunnel Authority then filed a grievance arguing that the new requirement violated its members’ rights under the collective bargaining agreement.

The grievance went to arbitration where the arbitrator sustained the grievance but left it to both parties to come up with a compromise that would take into account the needs of both, and retained his jurisdiction to provide a solution if they failed at doing so. In May 2006, the arbitrator directed that respondent could require an employee to charge up to 25% of his accrued annual vacation leave for FMLA leave purposes before giving him the option of taking unpaid FMLA leave. This decision was then appealed and modified in Supreme Court which then led to this review.

The Court impermissibly substituted its judgment and interpretation of the collective bargaining agreement by modifying the arbitrator’s May 2006 determination. The arbitrator’s decision was not irrational and thus should not have been modified.

Accordingly, the Court reversed the decision modifying the May 2006 arbitration award without costs, denied the petition, and dismissed the proceeding.

Read the full article here.

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This Court of Appeals case centered on whether or not issues submitted by the Civil Service Employees Association were subject to arbitration.

This the history of the case includes a report issued by the New York State Civil Service Commission in the year 2004 noting that Long Beach had poor control over its provisional appointments in the civil service. Most importantly several positions in the competitive class have been filled with provisional appointments and one had been filled provisionally for a total of 19 years.

The city determined that the provisional appointments violated Civil Service Law and terminated the employees. The CSEA filed grievances and demanded arbitration alleging that the employees were tenured.

The city brought an action to stop the arbitration. The Supreme Court granted the motion to stay the arbitration and the Appellate Division affirmed. Their reasoning behind the decision is that a provision in the Collective Bargaining Agreement to arbitrate these disputes violated Civil Service Law.

Citing Civil Service Law section 65 (1) the court found that provisional appointments are allowed when there is no eligible list available for filling a vacancy in a competitive class and then for only a maximum of nine months. Furthermore, once a provisional employee has been in a position four months the City must hold a Civil Service examination. Section 65 allows no tenure to provisional employees and the collective bargaining agreement between the city and the C. S. E.A. is meaningless in light of the Civil Service Law.

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