Pending Improper Practice Does Not Bar Related Arbitration

I bring Matter of City of Watertown and Watertown Professional Firefighters, ___A.D.3d___(4th Dept. July 7, 2017), to your attention for several reasons. First, in a relatively short opinion, the court does a nice job summarizing the standards to stay arbitration under New York law. Second, the court holds that a pending administrative case, presumably one at PERB, would not bar arbitration over a similar issue. As the court explained:

"It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, we do not determine the merits of the grievance and instead determine only whether the subject matter of the grievance is arbitrable" (Matter of City of Syracuse [Syracuse Police Benevolent Assn., Inc.], 119 AD3d 1396, 1397; see CPLR 7501; Matter of Board of Educ. of Watertown City Sch. Dist. [Watertown Educ. Assn.], 93 NY2d 132, 142-143). "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance' . . . If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]. If there is a prohibition, our inquiry ends and an arbitrator cannot act" (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519; see Syracuse Police Benevolent Assn., Inc., 119 AD3d at 1397; Matter of Mariano v Town of Orchard Park, 92 AD3d 1232, 1233).
We reject the City's contention on appeal that arbitration of respondent's grievance with respect to the City's failure to maintain minimum staffing levels is prohibited by law. Under the first prong of the arbitrability test, "the subject matter of the dispute controls the analysis" (Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 280). Contrary to the City's contention, a pending administrative proceeding concerning respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the "particular subject matter of the dispute" is not "authorized," i.e., not " lawfully fit for arbitration' " (id.).
We reject the City's further contention that the parties did not agree to arbitrate the grievance. " Our review of that question is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom' " (Matter of Wilson Cent. Sch. Dist. [Wilson Teachers' Assn.], 140 AD3d 1789, 1790; see Matter of Niagara Frontier Transp. Auth. v Niagara Frontier Transp. Auth. Superior Officers Assn., 71 AD3d 1389, 1390, lv denied 14 NY3d 712). "Where, as here, the [CBA] contains a broad arbitration clause, our determination of arbitrability is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA' "

Education Law 3020-a Decision Finding of Misconduct Bars Unemployment Insurance

Under New York law, if an employee is terminated for misconduct, they generally are not entitled to unemployment insurance. The issue of what constitutes disqualifying misconduct is often litigated.

Matter of Telemaque v. Commissioner of Labor, ____A.D. 3d___(3d Dep't, 2017), addressed the issue of whether a finding of misconduct by a Education Law Section 3020-a hearing officer is conclusive for purposes of Unemployment Insurance and the court held that it is, reasoning:

 Claimant primarily challenges the Hearing Officer's factual and credibility determinations, and argues that evidentiary errors were made at the disciplinary hearing. It does not appear that claimant appealed that disciplinary determination and her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding. Moreover, the record reflects that claimant was represented by an attorney at the hearing who had the opportunity to present evidence and witnesses and to cross-examine the employer's witnesses, and that claimant testified at length with regard to the charges. As claimant had a full and fair opportunity to litigate the charges of misconduct at that hearing, the Board properly gave collateral estoppel effect to the Hearing Officer's factual determinations. . .