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Thursday, November 15, 2012

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance


Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance
Westchester County Corr. Officers' Benevolent Assn. v County of Westchester, 2012 NY Slip Op 07307, Appellate Division, Second Department

An arbitrator issued an award that directed the Westchester County Department of Correction to cease from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day had not been reached. When the Westchester County Corr. Officers' Benevolent Association attempted to confirm the award, Supreme Court denied its Article 75 petition.

The Appellate Division reversed the Supreme Court’s ruling.

The Appellate Division explained that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies," and a court may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes that its interpretation would be the better one," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 and other decisions.

Further, said the court, even where an arbitrator makes errors of law or fact, "courts will not assume the role of overseers to conform the award to their sense of justice."

In contrast, while "judicial review of arbitration awards is extremely limited," the Appellate Division noted that a court may vacate an arbitrator's award where the arbitrator "exceeded his [or her] power." Typically courts find that an arbitrator exceeds his or her power where his or her award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

In this instance the Appellate Division found that the Supreme Court’s determination that the arbitrator had exceed a specifically enumerated limitation on his power was incorrect.

The court noted that the collective bargaining agreement provides that "[a] grievance dispute arising under any term of the Agreement involving County policy or discretion may be submitted for arbitration only as to the question of whether or not the County policy was disregarded, or was applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion." However, said the Appellate Division, this provision “does not contain any limitation upon the arbitrator's power to fashion an appropriate remedy where he or she determines that a County policy has been applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion.”

Here, the arbitrator determined that a policy of the Westchester County Department of Correction that permitted only one correction officer per day to use a floating holiday or vacation day was applied in an arbitrary manner to the named grievant.

As the collective bargaining agreement did not set out any limitation on the arbitrator's power to award relief upon making such a finding, the court ruled that the arbitrator had not exceed his power by “directing the Department to cease and desist from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day, as determined by the Department, has not been reached.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07307.htm

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