Wednesday, June 22, 2011

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer
Matter of Communication Workers of Am., Local 1170 v Town of Greece, 2011 NY Slip Op 05308, Appellate Division, Fourth Department

The arbitrator sustained various disciplinary charges against a Town of Greece police sergeant and determined that "[t]he Town had just and sufficient cause to demote" the Sergeant. The arbitrator further determined, however, that a permanent demotion was unreasonable and arbitrary, and converted the proposed penalty to a demotion for a term of one year.

The CWA asked Supreme Court to confirm the arbitration award while the Town asked the court to vacate the award in part on the ground that the award exceeded the scope of the arbitrator's authority. 

Supreme Court sustained Greece’s motion to vacate the award and remanded the matter to the Town for its imposition of a new penalty.

In response to CWA’s appeal, the Appellate Division held that Supreme Court erred in vacating that part of the arbitration award reducing the penalty to a demotion for a term of one year and remitted the matter "to the Town for reconsideration of the penalty to be imposed upon" the Sergeant and confirmed the arbitration award.

The Appellate Division said that an arbitrator’s award may be vacated on the ground that an arbitrator exceeded his or her power "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Court explained that “It is well established that "an arbitrator has broad discretion to determine a dispute and fix a remedy[] and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself'," citing Matter of State of New York [Dept. of Correctional Servs.] [Council 82, AFSCME], 176 AD2d 1009, lv denied 79 NY2d 756. Further, the Appellate Division pointed out that "To exclude a substantive issue from arbitration, therefore, generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach."

Specifically the court decided that the underlying collective bargaining agreement [CBA] authorized the arbitrator to determine that the imposed punishment is "unreasonable, arbitrary or capricious" and if so found, the CBA specifically provides that, "where the penalty imposed is found to be unreasonable, arbitrary or capricious," the arbitrator may make a determination "with respect to the penalty imposed upon the grievant . . . ."

The Appellate Division pointed out that while the CBA does not explicitly authorize an arbitrator to substitute an appropriate penalty upon determining that the penalty imposed by the Town is unreasonable, arbitrary or capricious, there is likewise no such "specifically enumerated limitation on the arbitrator's power."

Accordingly, the court conclude that the arbitrator did not exceed his authority in modifying the grievant's penalty from a permanent demotion to a demotion for a term of one year.

* Courts have also vacated an arbitration award where it is determined that the award “violated strong public policy.” See Ford v CSEA, 94 AD2d 262, in which the court addresses the critical question of the power of an arbitrator to render a decision which impacts on or affects a public policy.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05308.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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