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Using a CBA provision allowing an arbitrator to impose a different penalty than is otherwise mandated by the CBA is for the arbitrator to decide

Using a CBA provision allowing an arbitrator to impose a different penalty than is otherwise mandated by the CBA is for the arbitrator to decide
Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2010 NY Slip Op 01378, decided on February 18, 2010, Court of Appeals

The New York City Transit Authority (TA) alleged that one of its Conductors assaulted a member of the public on a subway platform and filed disciplinary charges seeking the termination of the employee.

The relevant part of the collective bargaining agreement controlling such disciplinary actions provided that "If there is presented to the [arbitrator] for decision any charge which, if proved in Court, would constitute a felony, or any charge involving assault, ? the question to be determined by the [arbitrator] shall be with respect to the fact of such conduct. Where such charge is sustained by the [arbitrator], the action by the Authority, based thereon, shall be affirmed and sustained by the [arbitrator] except if there is presented to the [arbitrator] credible evidence that the action by the Authority is clearly excessive in light of the employee's record and past precedent in similar cases. It is understood by the parties that this exception will be used rarely and only to prevent a clear injustice."

Although the arbitrator found the employee guilty of the charges, the penalty sought by the Authority, dismissal, the arbitrator modified the penalty to ?reinstatement without back pay.?

The arbitrator explained that the although the Transit Authority had presented as "past precedent" five prior arbitration awards where other arbitrators had upheld termination decisions, he found that there were ?substantive differences between this case, and those relied upon by the Authority as 'precedent' [that] render the [employee] worthy of the 'exception', regarding which arbitrators have judgmental discretion under the Agreement provision cited [above]."

The Transit Authority filed an Article 75 petition in an effort to have the arbitration award vacated. Supreme Court concluded that the arbitrator had exceeded his power in modifying the penalty and granted the Transit Authority's petition and the Appellate Division, by a 3 to 2 decision, affirmed the lower court?s determination [60 AD3d 1]. The Union appealed ?as a matter of right.?

The Court of Appeals said that of the three "narrow grounds" that may support a court?s vacating an arbitrator's award are that [1] the award violated public policy; [2] is irrational; or [3] "clearly exceeds a specifically enumerated limitation on the arbitrator's power" only the last ? that the arbitrator exceeded his power ? was cited by the Authority in support of affirming the lower courts? rulings.

The Court of Appeals rejected the Authority?s argument, noting that under the relevant provision of the collective bargaining agreement, after an arbitrator in a case involving assault allegations determines as a matter of fact that an assault did occur, ?the applicability of the provision's exception is a question uniquely within the arbitrator's power to decide.?*

The court said that were it to vacate the arbitrator's award on the ground advanced by the Transit Authority, such action would not involve a determination that the arbitrator had exceeded his power but rather would entail the kind of "inapt flirtation with the merits, or ... inappropriate use of the judicial scalpel to split the hairs that mark the perimeters of the contractual provisions" that "[h]istory, legislation, and experience," not to mention our case law, dictate that we refrain from? doing.

In this case, said the court, if an assault did occur, the arbitrator was then to sustain the Transit Authority's action the exercise of the arbitrator's discretion was warranted under the provision's exception. After finding that an assault did in fact occur, the arbitrator considered whether an application of the exception was warranted.? This, said the court, was the very question submitted to arbitration under the CBA and the arbitrator here concluded that the exception applied.

Citing United Federation of Teachers, 1 NY3d at 83, the court said that ?Even when such ?interpretations and factual findings appear highly debatable? - and we make no comment here on the merits of the arbitrator's decision in this matter ? ?whether we agree with the arbitrator is beside the point.??

Accordingly, the Court of Appeals reversed the Appellate Division?s decision and dismissed the Authority?s petition.

* Judge Smith wrote a dissenting opinion in which Judge Read concurred.

Full post as published by New York Public Personnel Law on February 19, 2010 (boomark / email).