How To Appeal A 3020-a Arbitrator Decision And The "Just Cause" Provision Used To Determine The Arbitrator's "Award".

In the State Education Law 3020-a the Arbitrator is given wide discretion in deciding the award (penalty) for the tenured teacher. However, occasionally the Arbitrator violates those rules and can be overturned in New York State Court under the Article 75 provisions (CPLR 7511). An example of this is the Teddy Smith arbitration decision when a second arbitrator only used the transcripts of the first arbitration decision to decide the award. Failure of the second arbitrator to hear the case was a violation of the rules and the award was reversed by the Supreme Court Judge. Remember, the 75-11 appeal must be submitted within ten days of the decision. Failure to meet the ten day time limit means that no appeal is allowed.


The four reasons that an Arbitrator's award can be reversed can be found in the New York Public Personnel Law. These four reasons are somewhat broad and vague. However, unless the Arbitrator's decision is egregious, it is highly unlikely that the Court will overturn the Arbitrator's award. listed below are the grounds that an Arbitrator's award can be appealed.:

The sole grounds set out in Article 75 for overturning such a determination:

1. Proof of corruption, fraud or misconduct in procuring an award;

2. The partiality of the arbitrator;

3. The arbitrator exceeded his or her authority; or

4. The arbitrator failed to follow the procedures set out in Article 75.

More interestingly, is the basis for an Arbitrator to terminate a tenured teacher. While, only 10% of the 3020-a cases in New York City lead to termination (20% of cases actually heard by an Arbitrator).The basis for an Arbitrator to terminate a tenured teacher must meet the "Just Cause" provision in the employee dismissal law, Section 5 and starting from page 5-13. The seven provisions must all apply if an Arbitrator is to terminate the tenured teacher.

JUST CAUSE STANDARD BY ARBITRATORS

In determining whether an employer’s discipline of an employee was for cause. The Arbitrator usually considers two elements. The Arbitrator first makes a factual determination whether the employee committed the act alleged and then makes a determination as to whether the act committed warranted the discipline imposed. In cases of dismissal, the burden is always on the employer to prove wrongdoing, and is always so when the agreement requires “just cause” for dismissal.

According to the “just cause” standard if any of the seven questions are determined by the Arbitrator not to be true (negative), then “just cause” does not exist and the Arbitrator can use his judgment on the proper penalty, short of termination.

· Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

· Was the company’s rules reasonably related to a) the orderly, efficient, and safe operation of the company’s business and b) the performance that the company might expect of the employee?

· Did the company, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate or disobey a rule of order by management?

· Was the company’s investigation done fairly and objectively?

· At the investigation, did the company’s decision maker obtain substantial and compelling evidence of proof that the employee was guilty as charged?

· Has the company applied its rules, orders, and penalties evenhandedly to all employees without discrimination?

· Was the degree of discipline administered by the company in a particular case substantially related to a) the seriousness of the employee’s proven offense and (b the employment record of the employee in his service to the company.

The inconsistent enforcement of company rules is improper, and the discipline is set aside upon proof of discriminatory enforcement. Further, the Arbitrator can set aside management decisions on the grounds that the employee was denied due process rights in the investigatory procedure.

While most Arbitrators follow the ""just cause" practice, some may have their own very similar standards that are used to determine their "awards".

It is very important that all teachers going into their 3020-a hearings understand what their rights are. The more you know the better you will be able to defend yourself.