Meehan v. Nassau Community College

• Citation: 243 A.D.2d 12,676 N.Y.S.2d 178
• Decision Date: 08 June 1998
• Docket Number: No. 1,No. 2,1,2
• Parties: , 159 L.R.R.M. (BNA) 2572, 128 Ed. Law Rep. 811, 1998 N.Y. Slip Op. 5777 In the Matter of John T. MEEHAN, etc., Appellant, v. NASSAU COMMUNITY COLLEGE, Respondent. (Proceeding) In the Matter of NASSAU COMMUNITY COLLEGE, Respondent, v. John T. MEEHAN, etc., Appellant. (Proceeding)
• Court: New York Supreme Court Appellate Division

Page 178

676 N.Y.S.2d 178

243 A.D.2d 12, 159 L.R.R.M. (BNA) 2572,

128 Ed. Law Rep. 811,

1998 N.Y. Slip Op. 5777

In the Matter of John T. MEEHAN, etc., Appellant, v. NASSAU COMMUNITY COLLEGE,

Respondent. (Proceeding No. 1.)

In the Matter of NASSAU COMMUNITY COLLEGE, Respondent, v. John T. MEEHAN, etc., Appellant. (Proceeding No. 2.)

Supreme Court, Appellate Division,

Second Department.

June 8, 1998.

Pryor, Cashman, Sherman & Flynn, New York City (Richard M. Betheil and Tina C. Kremenezky, of counsel), for Appellant.

Ingerman Smith, L.L.P., Northport (John H. Gross and Neil M. Block, of counsel), for Respondent.

Before BRACKEN, J.P., and PIZZUTO, FRIEDMANN and McGINITY, JJ.

BRACKEN, Justice Presiding.

These two proceedings present a common issue, to wit, whether an arbitration award issued by a tripartite board of arbitrators is subject to vacatur pursuant to CPLR 7511(b)(1) on the ground that one of the two party-designated arbitrators had direct personal knowledge of the disputed facts and gave testimony with respect thereto. We hold that the CPLR does not authorize vacatur on this ground. We therefore reverse the judgment of the Supreme Court in Proceeding No. 2, which vacated the award made in what the parties refer to as the "overload case". However, we affirm the judgment of the Supreme Court in Proceeding No. 1, which vacated the award in what the parties refer to as the "History Department case" on an alternative ground, i.e., public policy.

FACTS

In each of these two proceedings, the appellant is John T. Meehan, as president of the Adjunct Faculty Association of Nassau Community College (hereinafter the union). The union is the certified bargaining representative for members of the adjunct faculty at Nassau Community College (hereinafter the college), the respondent on these two appeals.

The two disputes involved were the subjects of two arbitrations held in accordance with what is described as "Step III" in two collective bargaining agreements, one originally effective as of October 1, 1982, and one effective October 1, 1984. According to these agreements, the Step III Grievance Board is to consist of "one member selected by the College Administration, one member selected by the Adjunct Faculty Association, and a third member selected by mutual consent".

HISTORY DEPARTMENT CASE

The arbitration proceeding referred to by the parties as "the History Department case" (Proceeding No. 1) began when the union asserted grievances based upon the college's removal of three adjunct professors from the seniority list of the History Department. The three professors in question each had a Master's degree in history, but lacked an additional 30 credits toward the attainment of a Ph.D. The college removed them from the seniority list on the ground that their qualifications failed to meet minimum requirements. The union asserted that the When the dispute arrived at Step III, the union chose Charles J. Loiacono as its designated member of the arbitration panel. Mr. Loiacono is the vice-president of the union. At the arbitration he testified to his review of the qualifications of a full-time faculty member whose Master's degree was in near east studies, rather than in history, but who was nevertheless among the full-time faculty members assigned to teach history courses at the college, in supposed derogation of the rights of one or more of the grievants. Several other full-time faculty members were also shown to have lacked a Master's degree in history, and to have possessed instead Master's degrees in fields such as Slavic languages and education.

college was applying its standards selectively, resulting in the assignment of sometimes less-qualified full-time faculty members to teach various history courses.

The arbitration award in favor of the union, dated September 1, 1995, was written in the name of Philip J. Ruffo, the "Neutral Member and Grievance Board Chairperson", with whom Mr. Loiacono, the union designee, concurred. The college's designee, Anna Maria Mascolo, who also serves as a vice-president of the college, dissented. The award was based essentially on the finding that "the stated qualifications of the History Department were selectively applied so as to discriminate against members of the adjunct faculty".

By petition dated November 22, 1995, the union sought to confirm the award. The college opposed the application, arguing, inter alia, that "[a]rbitrator Loiacono demonstrated partiality and engaged in misconduct by testifying under direct examination in support of the [union's] position".

The Supreme Court (Burke, J.), dismissed the petition, concluding that "[t]estimony by an arbitrator in an arbitration proceeding over which he is presiding is, at the very least, violative of the arbitrator's oath and clearly undermines the integrity of the arbitration process". In a judgment dated July 31, 1996, the court granted the parties leave to submit their dispute to a de novo arbitration. The union appeals.

OVERLOAD CASE

The arbitration proceeding referred to by the parties as "the overload case" (Proceeding No. 2) began when the union asserted grievances based on the college's assignment of certain "overload courses" to members of the full-time faculty, rather than to members of the adjunct faculty. According to the definition offered by a representative of the college, an "overload course" is one which, if assigned to be taught by a full-time faculty member, results in that faculty member's having a total caseload over the normal "base fifteen (15) hour workload per semester". In essence, the union claims that courses assigned to full-time faculty members so as to result in such an "overloading" of their normal schedules, should have been offered first to members of the adjunct faculty.

Mr. Loiacono, the union's vice president, was again its designated member of the arbitration panel. He testified at this arbitration as well, and his testimony was to the effect that, with respect to the assignment of various overload courses, more senior adjunct instructors had been "bumped" by less senior full-time instructors.

The arbitration resulted in a finding that "the College has violated the AFA collective bargaining agreement by failing to treat overload courses as adjunct courses". Once again, Mr. Loiacono concurred with Mr. Ruffo in an award in favor of the union, and Ms. Mascolo dissented.

By petition dated November 17, 1995, the college sought to vacate the award. The college again argued that "[a]rbitrator Loiacono demonstrated partiality and engaged in misconduct by testifying under direct examination in support of the [union's] position". The union filed a cross-motion for a judgment confirming the award.

The Supreme Court (Alpert, J.), granted the petition to vacate the award, concluding that "[t]he participation by a party-designated arbitrator in two different and mutually inconsistent capacities, together with the neutral arbitrator's acquiescence therein * * * undermines the integrity of the arbitral process". By a judgment entered July 3,

1995, the parties were instructed to proceed to a new arbitration. The union appeals.

ANALYSIS

The two judgments issued by the Supreme Court in the two proceedings reflect a understandable tendency on the part of the courts, steeped as they are in notions of due process and basic fairness that have their roots in the common law, to "judicialize" arbitration (see, Matter of Astoria Med. Group [Health Ins. Plan of Greater N.Y.], 11 N.Y.2d 128, 136, 227 N.Y.S.2d 401, 182 N.E.2d 85; Madawick Contr. Co., Inc. v. Travelers Ins. Co., 307 N.Y. 111, 119, 120 N.E.2d 520; Matter of Brody v. Owen, 259 App.Div. 720, 721, 18 N.Y.S.2d 28; Fudickar v. Guardian Mut. Life Ins. Co., 62 N.Y. 392, 399). If an arbitrator is "a judge appointed by the parties" (Fudickar v. Guardian Mut. Life Ins. Co., supra, at 399), the temptation might arise to apply the familiar ethical rule that "a judge shall disqualify himself or herself * * * where the judge has personal knowledge of disputed evidentiary facts" (22 NYCRR 100.3[E][1][a][ii] ). The applicable statutes and the relevant case law require, however, that this temptation be resisted, because the analogy between judge and arbitrator, and arbitration and trial, are simply "not very meaningful" (Astoria Med. Group [Health Ins. Plan of Greater N.Y.], supra, at 137, 227 N.Y.S.2d 401, 182 N.E.2d 85, quoting Sturges, "Arbitration--What Is It?", 35 N.Y.U.L.Rev. 1031, 1045-1046).

The grounds upon which a party who has either participated in an arbitration or has been served with a notice of intention to arbitrate, may apply to the Supreme Court to vacate or modify the award, are set forth in CPLR 7511(b)(1) as follows:

"The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection".

As the Court of Appeals stated in Matter of Granite Worsted Mills (Aaronson Cowen Ltd.), 25 N.Y.2d 451, 306 N.Y.S.2d 934, 255 N.E.2d 168, "it is clear that an arbitrator's award may be vacated only upon the grounds specified in the statute * * * and that, if the moving party cannot establish one of the statutory grounds, the award must be confirmed" (see, Matter of Granite Worsted Mills [Aaronson Cowen Ltd.], supra, at 454, 306 N.Y.S.2d 934, 255 N.E.2d 168; ...