In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute

In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute
Matter of City of New York v District Council 37 AFSCME, 2010 NY Slip Op 05671, Decided on June 24, 2010, Appellate Division, First Department

An arbitrator ruled that a number of individuals employed as New York City Public Health Advisors (PHAs) by the City’s Department of Health and Mental Hygiene were entitled to $1,800 for each year since the filing of the grievance claiming that they had been performing out-of-title work.

The City appealed, contending that any monetary remedy for the out-of-title work should be “the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some "new term" of compensation "created" by the arbitrator.” The City argued that the remedy provided by the arbitrator was “in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated.”

Supreme Court dismissed the City’s appeal and the Appellate Division sustained the lower court’s determination.

The Appellate Division said that regardless of any arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, “it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles.”

Under the circumstances, said the court, “an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order.”

As there was no “plain and express contractual limitation” in the collective bargaining agreement limiting the powers of the arbitrator, “the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05671.htm