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Back in 2019, when the Nassau County Sheriff directed that “adolescent offenders” be transported by non-union members, the Nassau County Sheriff's Correction Officers Benevolent Association claimed that its collective bargaining agreement called for its members to undertake that task.

On October 11, 2019, within the context of arbitration, an arbitrator determined that union members did not have the exclusive authority to transport “adolescent offenders,” as they were not “inmates.” About a month later, on November 23, 2019, in response to the Association’s request for clarification, the arbitrator modified the original determination and concluded that the union did have exclusive authority to transport these offenders to Criminal Court, but not Family Court.

When the County commenced a special proceeding to confirm the original award, the Association opposed and asked for the subsequent order’s confirmation. Ultimately, a Nassau County Supreme Court Justice ended up vacating the subsequent (modified) award and confirming the original determination, handing a victory to the County. Of course, an appeal to the Appellate Division, Second Department, then ensued.

According to state law, once an arbitrator renders an award, modification is not permitted except in extremely limited circumstances. But, in no event, can the “merits” of that award be impacted in the process. When the “clarification" of November 23, 2019, issued, the AD2 was of the view the arbitrator engaged in a new “merits analysis.” Because it “went beyond correcting a miscalculation or mistake, correcting an award upon a matter not submitted to him without affecting the merits of the decision, or correcting a matter of form not affecting the merits of the controversy,” that “overstepping” required that the modification be vacated and the original award confirmed, as the Supreme Court had correctly directed.

How’s that for a merits analysis?

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Matter of County of Nassau v Nassau County Sheriff's Corr. Officers Benevolent Assn., Inc.