July 19, 2018

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement
Matter of Lift Line, Inc. (Amalgamated Tr. Union, Local 282), 2018 NY Slip Op 05102, Appellate Division, Fourth Department

The terms of the collective bargaining agreement (CBA) between Lift Line, Inc., [Employer] and the Amalgamated Transit Union, Local 282 [Local 282] provided that, if the discharge of an employee was found to be without "just cause," the record of the offense would be cleared from the employee's personnel file.

The CBA also incorporated a memorandum of agreement with respect to employee attendance (Attendance Policy) that set forth an eight-step disciplinary process, including discharge of the employee at step eight. The Attendance Policy provided that an employee "who is tardy will progress one step in the attendance disciplinary process for each instance of tardiness," and would move back one step if he or she did not have "another incident of tardiness for six consecutive months after such discipline."

The employee [grievant] here was late to work on seven occasions over the course of a little over one year and was thus at step seven at the time of the incident that led to her termination. In that incident, she was one minute late to work after her vehicle was stuck behind a disabled train at a rail crossing near her employer's facility.

The arbitrator analyzed the just cause provision together with the Attendance Policy and concluded that Employer's strict application of the attendance disciplinary process to terminate the grievant was "overly severe, especially with the absence of any evidence that efficiency or other difficulties were created by the [g]rievant's one-minute tardiness."

Supreme Court granted Employer's petition to vacate the arbitration award, in part, denied the application of Union to confirm the arbitration award, and reimposed the penalty of employment termination as provided by the CBA. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," granted the Union's application and confirmed the arbitration award.

As relevant here, said the Appellate Division, "[A]n arbitrator's rulings, unlike a trial court's, are largely unreviewable [and] [a]n arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words of the contract before him [or her] and still be impervious to challenge in the courts." Explaining that an arbitration award is irrational "if there is no proof whatever to justify," the court said it agreed with the Union  that the arbitrator's award in this instance was not irrational* as here "there is a colorable justification for the arbitrator's determination."

The Attendance Policy was a no-fault, straightforward progression of discipline that would be imposed for every incident of tardiness. Nevertheless, the CBA also had the "just cause" provision, and the arbitrator concluded that strict adherence to the attendance policy could be rejected in exceptional cases.

In concluding that the grievant's termination was overly severe, the court said that the arbitrator relied on the fact that the grievant called in 10 minutes before her shift to say that she might be late due to the delay caused by the disabled train; another employee called in to report the same delay; the delay was unexpected and abnormal; the grievant was only one minute late; and no difficulties were created by the grievant's tardiness.

Thus, said the Appellate Division, "[t]he arbitrator made a rational interpretation of the just cause provision and the Attendance Policy. "Although the court recognized that "a different construction could have been accorded to the subject provision[s] of the [CBA]," it decided that "it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

Observing that the CBA provided that the arbitrator "shall have no power or authority to add to, subtract from, modify, change, or alter any provisions of this Agreement,"** the Appellate Division found that the arbitrator had not impose any new requirement upon Employer before it could discipline its employees and thus did not add to or alter the CBA. Rather, as the court had indicated earlier in its opinion, "the arbitrator determined, under the specific facts of this case, that the penalty of termination could not be upheld" and did not adopt any new rules that Employer must follow in future disciplinary cases. [Emphasis supplied by the court.]

Indeed, the court commented that "[t]he argument that the arbitrator exceeded a limitation in the collective bargaining agreement . . . is nothing more than a challenge to the substance of the arbitrator's contract interpretation, which . . . is foreclosed." 

* The Appellate Division, however, noted that "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

**A court may vacate an arbitration award if it finds that the rights of a party were prejudiced when "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (CPLR 7511 [b] [1] [iii])." Such an excess of power occurs only where the arbitrator's award violates strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

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