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ARBITRATOR EXCEEDED HIS AUTHORITY PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (CBA) BY RELYING ON EVIDENCE WHICH WAS NOT PART OF THE HEARING EVIDENCE TO DETERMINE WHETHER THE RESPONDENT HAD PROBABLE CAUSE TO SUSPEND THE PETITIONER (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator in this employment dispute covered by a collective bargaining agreement (CBA) , exceeded his authority by relying on the information in the notice of suspension, as opposed to the hearing evidence, to determine whether the employee, who was suspended without pay, was entitled to back pay:

Respondents’ sole contention on appeal is that the arbitrator’s award of back pay for the period of interim suspension exceeded his authority. We agree. “Judicial review of arbitral awards is extremely limited. Pursuant to CPLR 7511 (b) (1), a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator’s power” … . Moreover, “although an arbitrator’s interpretation of contract language is generally beyond the scope of judicial review, where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority”… . Therefore, “if the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator’s construction[,] in effect, made a new contract for the parties, which is a basis for vacating the award” … . …

Here, the arbitrator’s award of back pay for the period of interim suspension was based upon a determination that DOCCS lacked probable cause to suspend petitioner. As relevant here, section 33.4 (c) (1) of the CBA states that “[s]uspensions without pay . . . shall be reviewable by a disciplinary arbitrator . . . to determine whether the [respondent] had probable cause.” This Court has previously held that hearing evidence should be considered by the arbitrator in determining probable cause (see Matter of Livermore-Johnson … . However, the decision makes clear that the arbitrator did not rely on the hearing evidence to reach this determination … . Matter of Czerwinski (New York State Dept. of Corr. & Community Supervision), 2019 NY Slip Op 04526, Third Dept 6-6-19

 

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