Petitioner Teachers4 Action individually and on behalf of its members, hereby declares nd says as follows:
1. Petitioner Teachers4Action is a group of New York City Public School Teachers. This
Petition is brought by Teachers4Action individually and on behalf of its members (as set forth on Exhibit 1).2. Respondents are a panel of arbitrators who, pursuant to NYS Education Law 3020, sit in judgment of Petitioners.
3. The Petition is brought pursuant to CPLR 7803 (1), (2), (3) and (4).
4. The relief is necessary to prevent the manifest injustice that is being committed against
Petitioner Teachers4Action and its members by forcing them into 3020-a hearings,
without counsel and with Respondent Arbitrators who have violated and continue to
violate NYS Education Law and the Collective Bargaining Agreement rules that govern
the 3020-a hearings.
5. Respondent Arbitrators are biased and prejudiced.
6. Respondent Arbitrators should not have accepted employment pursuant to NYS
Education Law and the Collective Bargaining Agreement.
7. Respondent Arbitrators failed to disclose and/or concealed from Petitioners the conflicts
of interest, bias and prejudice.
8. Respondent Arbitrators are attempting to continue their employment, conduct hearings,
render verdicts and make decisions in 3020-a hearings that are being conducted by
Respondent Arbitrators in violation of the terms and provisions of the 3020-a law and the
Collective Bargaining Agreement.
9. After Petitioners discovered Respondent Arbitrators bias, Respondent Arbitrators refused
to follow the provisions of NYS law and the Collective Bargaining Agreement, convened
hearings, made determinations and issued rulings in violation of the lawful procedures,
and which were arbitrary and capricious.
10. After Petitioners discovered the bias, prejudice and improper actions, they notified
Respondent Arbitrators and demanded that they disqualify themselves and not conduct
any further 3020-a hearings.11. Respondent Arbitrators have refused, performed duties and/or actions in violation of NYS
law for which CPLR 7803 (1) applies.
12. Respondent Arbitrators have proceeded, are proceeding or about to proceed in violation
of NYS law and the terms of the Collective Bargaining Agreement, for which CPLR 7803
(2) applies.
13. Respondent Arbitrators have made determinations in violations of NYS law and the terms
of the Collective Bargaining Agreement, and/or which are arbitrary and capricious, for
which CPLR 7803 (3) applies.
14. Respondent Arbitrators have made determinations at hearings, based on evidence taken,
which evidence was taken in violation or in which hearings evidence was unlawfully
suppressed, in violation of NYS law and the terms of the Collective Bargaining
Agreement, and/or which are arbitrary and capricious, for which CPLR 7803 (4) applies.
15. The relief sought is to enjoin the arbitrators from continuing to sit in violation of the law
and Collective Bargaining Agreement procedures, and who are otherwise biased,
prejudiced and should not have accepted employment and should have recused
themselves when Petitioners discovered the facts and promptly moved for
disqualification.
16. Plaintiffs have discovered that the Arbitrators have violated and ignored the rules
governing the 3020-a hearings and do so because they are biased against Petitioners17. Perhaps the most egregious example of Bias that demonstrates that the relief sought is
meritorious and warranted is the fact that the lead named Respondent Deborah M. Gaines
is or was affiliated with and/or an employee of Petitioners employer. See Exhibit 2.
18. Other examples of the need to enjoin Respondent Arbitrators:
a. Respondent Gaines works in the Mayor’s Office of Labor Relations and is a
permanent member of the Panel that is sitting in judgment of matters related to
Petitioners. Respondents communicate with one another and Respondent Gaines’
presence, decisions and advice influences the entire Respondent Panel and
prejudices Petitioners rights;
b. On April 15, 2008, Arbitrator Javitz at a hearing of Petitioner’s member Paul
Santucci confirmed that he was taking directions from the New York State
Education Department about whether or not he should stay the 3020-a hearings
until the issue of NYSUT withdrawal and providing alternate counsel was
resolved;
c. After they were put on notice of the Petitioners request that the Arbitrators recuse
themselves, each Arbitrator violated the rules governing the arbitrations by ruling
themselves and refusing to call for a ruling by, and according to, AAA rules;
d. Arbitrators have refused to disclose their financial conflicts that raise questions as
to their ability to impartially hear the issues in the arbitration, again in violation of
AAA rules;
e. Arbitrators are intentionally concealing evidence and preventing the record from
containing the substantial evidence1 presented by Petitioners -See Exhibit 3 –
excerpt from McLoughlin transcript showing that Respondent Arbitrator directed
certain matters be excluded from the record;
f. Arbitrators are improperly taking directions from third parties who are improperly
influencing the 3020-a hearings – See Exhibit 4 – Misc Letters directing
Arbitrator actions.
19. Respondent Arbitrators are not moving the 3020-a hearings based upon principles of due
process in a forum where Petitioners can challenge the arbitrator, present defenses and
evidence, be represented by counsel and have a fair and impartial adjudication.
20. Respondent Arbitrators are acting in violation of NYS law and the Collective Bargaining
Agreement related to the 3020-a hearings, are motivated by their own personal pocket
books and have concealed their failure to follow the rules for arbitration and their bias
and prejudice.
21. Respondent Arbitrators knowingly violate NYS law and the provisions of the Collective
Bargaining Agreement related to the conduct, evidence and determinations at or in the
3020-a hearings.
22. Respondent Arbitrators fail to abide by the NYS law and the Collective Bargaining
Agreement governing rules related to the 3020-a arbitration.
1 In the case of Petitioner Roselyn Gisors, Respondent Arbitrator Eleanor Glanstein also
excluded evidence from the Record; in the case of Petitioner Jennifer Saunders, Arbitrator Eric
Lawson interfered with and prevented Petitioner from introducing relevant exculpatory evidence
that was admitted; in the cases of Petitioners Sydney Rubinfeld, Paul Santuccci, Gloria Chavez,
Michael Westbay, Lisa Hayes, Mauricio Zapata, Respondent Arbitrators Scheinman, Lowitt,
Javits, Pfeffer and Bauchner failed to submit the recusal motions to the AAA, pursuant to the
NYS law and the Collective Bargaining Agreement.23. Respondent Arbitrators failed to disclose and concealed their actual and potential
conflicts.
24. Respondent Arbitrators fail to follow the rules related to disqualification, based on bias
and prejudice or appearance of impropriety, including their financial relationship and
dependence upon Petitioners employer or other parties in interest.
25. Respondent Arbitrators are attempting to force Petitioners into 3020-a hearings that are
being conducted in violation of NYS law and the Collective Bargaining Agreements.
26. Respondent Arbitrators have made or are in the process of making arbitrary and
capricious determinations and/or rulings, excluded evidence, altered or precluded
evidence from being placed in the record, all of which is in violation of Petitioners’ due
process rights, affect Petitioners’ property rights and for which monetary damages are
insufficient.
Respondent Arbitrators Violated AAA Rules27. The Rules of the American Arbitration Association with regard to the qualifications of
the arbitrators provides, in pertinent part, the following:
Section 11. Qualifications of Arbitrator -Any neutral arbitratorappointed pursuant to Section 12, 13, or 14 or selected by mutual choice of
the parties or their appointees, shall be subject to disqualification for the
reasons specified in Section 17 . . .
Section 17. Disclosure and Challenge Procedure -No person
shall serve as a neutral arbitrator in any arbitration under these rules in which
that person has any financial or personal interest in the result of the
arbitration. Any prospective or designated neutral arbitrator shall immediately
disclose any circumstance likely to affect impartiality, including any bias or
financial or personal interest in the result of the arbitration. Upon receipt of
this information from the arbitrator or another source, the AAA shall
communicate the information to the parties and, if it deems it appropriate to do
so, to the arbitrator. Upon objection of a party to the continued service of a
neutral arbitrator, the AAA, after consultation with the parties and
the arbitrator, shall determine whether the arbitrator should be disqualified
and shall inform the parties of its decision, which shall be conclusive.28. The Arbitrators failed to make the necessary disclosures.
29. When Petitioners discovered the issues, they promptly challenged the Arbitrators.
However, the Arbitrators failed to follow Sections 11 and 17 of the AAA Rules
governing the 3020-a hearings.
30. N.Y.C.P.L.R. § 7504 provides in pertinent part that “If the arbitration agreement does
not provide for a method of appointment of an arbitrator, or if the agreed method fails or
for any reason is not followed, or if an arbitrator fails to act and his successor has not
been appointed, the court, on application of a party, shall appoint an arbitrator”.
NYS Supreme Court Has Authority to Disqualify Arbitrator31. It has long been recognized that the NY Courts have authority to disqualify an arbitrator.
See In Re Nat’l Union Fire Insurance of Pittsburgh PA 120192 (7-22-2004) 2004 NY Slip
Op 51024(U) (Court concludes has inherent power to disqualify an arbitrator before an
award has been rendered where there is a real possibility that injustice will result . . . .
citing Matter of Astoria Med. Group (Health Ins. Plan), 11 N.Y.2d 128, 132 (1962); and
Matter of Grendi (LNL Constr. Mgmt. Corp.), 175 A.D.2d 775, 776 (1st Dept. 1991).
32. Even an arbitrator's unintentional act may constitute misconduct sufficient to vacate an
award. See In re Albert (Hesney), N. Y.L.J., Sept. 7, 1993, p. 25, col. 5 (Sup.Ct.,
Rockland Co.) (the court held that the arbitrator's innocent but erroneous statement that
he was experienced in computer law was "misconduct" since the "fundamental fairness of
the proceeding seemingly was affected by having a person preside over a matter with
little or no experience in the field"). To the same effect are Bernstein v. Mitgang, 242
A.D.2d 328, 661 N.Y.S.2d 253 (2d Dep't 1997) (one form of misconduct is the refusal to
hear pertinent and material evidence); and Scott v. Bridge Chrysler Plymouth, 214
A.D.2d 675, 625 N.Y.S.2d 266 (2d Dep't 1995) (arbitrator's failure to dispose of the
controversy submitted renders award not final and thus subject to vacatur; failure to
consider all issues of fact and law that a court would have to consider in order to
properly dispose of the same controversy is not judicially reviewable).
33. An arbitrator exceeds his or her power when the arbitrator makes a completely irrational
decision, not when he or she misapplies law or misconstrues facts. See Local 375 v.
N.Y.C. Health & Hosps. Corp., 257 A.D.2d 530, 685 N.Y.S.2d 29 (1st Dep't 1999); Motor
Vehicle Accident Indemnification Corp. v. Travelers Ins. Co., 246 A.D.2d 420, 667
N.Y.S.2d 741 (1st Dep't 1998)
34. An Arbitrators insistence on continuing hearings can also be improper and a basis for
vacatur and removal. See Bevona v. Superior Maint. Co., 204 A.D.2d 136, 611 N.Y.S.2d
193 (1st Dep't 1994) (refusal to grant adjournment was misconduct where such refusal
foreclosed presentation of important evidence).
35. An arbitrator’s undisclosed ongoing financial relationship and/or dependence upon one
party is grounds for vacatur and disqualification. See Fein v. Fein, 160 Misc. 2d 760,
610 N.Y.S.2d 1002 (Sup.Ct., Nassau Co. 1994) (award vacated where arbitrator had
ongoing financial relationship with one party, and such fact was not disclosed prior to
arbitration).36. Disqualification of the Arbitrator should be made at the earliest opportunity and as soon
as the challenging party discovers the bias or prejudice and the arbitration should be heard
or proceed before new and unbiased arbitrator. See Santana v. Country-wide Ins. 177
Misc. 1 (1998).
37. Arbitrator disqualified for failure to disclose nature of relationship with party. See In Re
Application of Seligman v Allstate Insurance Co. 195 Misc. 2d 553 (2003).
38. Petitioners pray that the Arbitrators be recused and/or enjoined from continuing with
3020-a hearings for their (i) failure to abide by the governing rules of arbitration, (i)
failure to disclose their potential conflicts, (iii) failure to follow the rules related to
disqualification, based on bias and prejudice or appearance of impropriety, including their
financial relationship and dependence on the outcome, (iv) failure to properly address the
issues of NYSUT improper withdrawal, (v) taking directions from Respondents and/or
interested parties, (vi) forcing Petitioners and Petitioner’s members into 3020-a hearings
without counsel, (vii) refusal to stay the 3020-a hearings until these issues can be resolved
and (viii) improper issuance of awards and/or decisions influenced by their bias,
prejudice, lack of impartiality and misconduct in the 3020-a hearings.
39. The questions being raised in this Petitioner are those which are permitted pursuant to
N.Y.C.P.L.R § 7803 et seq including:
a. Did Respondents fail to perform a duty enjoined upon them by law ? -Answer: Yes !
b. Are Respondents proceeding or attempting to proceed without or in excess of
jurisdiction? Answer – Yes !
c. Are or have Respondents made determinations in violation of lawful procedure, or
that are affected by an error of law or which are arbitrary and capricious or an
abuse of discretion? Answer – Yes !
d. Have Respondents made determinations, as a result of hearings held, and at which
evidence was taken, pursuant to direction by law is, on the entire record,
supported by substantial evidence? Answer – Yes they made determinations but
no the determinations are not supported by the record or substantial evidence!
40. The failure to protect property interests (such as teachers salaries and teaching licenses)
and due process right and the use of the arbitrary and capricious standards of review are
administrative actions reviewable under CPLR 7803. As relates to Article 78 proceedings
related to arbitrations, contested issues of fact warrant evidentiary hearings prior to any
determination on the merits. See Cohoes Firefighter v. Cohoes, 258 A.D.2d 24, 28 [3d
Dept 1999] 692 N.Y.S.2d 750, aff’d 94 N.Y. 2d 686 (2000) .
41. In view of the foregoing, Petitioners pray the Court enjoin Respondent Arbitrators from
continuing to sit in violation of NYS law and the Collective Bargaining Agreementand/or from attempting to sit in judgment of any arbitration hearings involving Petitioners.