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Thursday, September 22, 2011

Authority of the arbitrator to fashion a remedy

Authority of the arbitrator to fashion a remedy
CCNY v Aiello, 295 A.D.2d 163

In the Aiello case, the significant issue concerned the authority of the arbitrator to fashion a remedy. The Appellate Division said that all limitations on the authority of the arbitrator set out in the collective bargaining agreement had to be observed by the arbitrator.

The case arose after the City University of New York decided not to reappoint Professor Rita Aiello for the 1999-2000 academic year. Aiello filed a grievance in accordance with the collective bargaining agreement. Ultimately the arbitrator ruled in her favor and directed that:

1. City University reappoint Aiello for one academic year if so recommended by a select faculty committee; and

2. All future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division sustained a State Supreme Court decision that vacated that part of the arbitration award directing that all future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division pointed out that although relevant provision of the collective bargaining agreement -- Section 20.5(c)(1) -- authorized the arbitrator to direct that a grievant's reappointment be decided, in effect, by a select faculty committee, "the same section also limits any such substitute decision making to "the action from which the grievance arose."

Here the grievance was triggered solely by University's decision not to reappoint Aiello for the 1999-2000 academic year. Thus, said the court, by directing that any future reappointments of Aiello had to be decided by a select faculty committee, the arbitrator exceeded the authority as set out in Section 20.5(c)(1) of the agreement.

Were this not sufficient, the Appellate Division also commented that the arbitrator had violated another contract provision -- Section 20.6. Section 20.6 provides that the arbitrator may not modify or amend the collective bargaining agreement.

In addition, the decision notes that the fact that there was some "arbitral precedent for an award like that rendered" by the arbitrator in Aiello's case cannot be relied on by her, citing New York City Transit Authority v Patrolmen's Benevolent Association, 129 AD2d 708, appeal dismissed 70 NY2d 719.

Also rejected was Aiello's argument that "the decision-making process resulting in the denial of her reappointment for the academic year 2001-2002 was so tainted as to demonstrate the truth of the arbitrator's forecast that [the University] was incapable of making fair academic judgments in her case." The appropriate course of action, said the court, would be for Aiello to again resort to the contract grievance procedure if she believed she was improperly denied reappointment in the future. 

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

A Reasonable Penalty Under The Circumstances 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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