Labor & Employment Law

Arbitration award vacated pursuant to the ?public policy exception?

By Harvey Randall, Esq.

Arbitration award vacated pursuant to the ?public policy exception?
Matter of City Univ. of N. Y. v Professional Staff Congress, 41 A.D.3d 138, Appellate Division, First Department

A City College professor filed a complaint with the College?s Affirmative Action Officer [AAO] after being denied tenure. The AAO requested, and was given, an ?administration file.?

The Professional Staff Congress [Union], in its capacity as the certified collective bargaining representative of the instructional and administrative employees of City University of New York (CUNY), filed a contract grievance alleging that the AAO was given improper access to the ?administration file.? According to the Union, the collective bargaining agreement provided that such files were to be ?available only to the committee and individuals responsible for the review and recommendation of the employee with respect to appointment, reappointment, promotion or tenure.?

Ultimately the Union demanded that its grievance be submitted to arbitration. The arbitrator agreed with the Union and directed CUNY ?to cease and desist from unilaterally demanding production of [Union] members? administration files to City College?s Affirmative Action Officer.?

CUNY filed an Article 75 action seeking to vacate the arbitration award.

Noting that there is but an ?extremely narrow? public policy exception to an arbitrator?s power to resolve disputes ?in arbitrations pursuant to public employment collective bargaining agreements,? in this instance the Appellate Division decided that the award should be vacated.

The court said that there was a ?strong public policy requiring employers to investigate discrimination complaints by their employees and take necessary corrective action.? Accordingly, and within the context of employing qualified teachers, a school administration ?cannot bargain away its right to inspect teacher personnel files and . . . a provision in a collective bargaining agreement which might reflect such a bargain is unenforceable as against public policy.? The Appellate Division cited Board of Education, Great Neck Union Free School Dist. v Areman, 41 NY2d 527, in support of its ruling.

Thus, said the court, ?in the context of its duty to investigate discrimination complaints, it would be against public policy for CUNY to bargain away its right to inspect administration files.?

The full text of the decision is at:

http://nypublicpersonnellawarchives.blogspot.com/2007/06/arbitration-award-vacated-pursuant-to.html

Full post as published by New York Public Personnel Law on March 24, 2008 (boomark / email).