| Matter of Massena Cent. School Dist. (Massena Confederated SchoolEmployees' Assn., NYSUT, AFL-CIO) |
| 2009 NY Slip Op 05674 [64 AD3d 859] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between Massena Central SchoolDistrict, Respondent, and Massena Confederated School Employees' Association, NYSUT,AFL-CIO, on behalf of Eric Fetterly, Appellant. |
—[*1] Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Demarest, J.), entered April 9, 2008 inSt. Lawrence County, which granted petitioner's application pursuant to CPLR 7511 to vacate anarbitration award.
Eric Fetterly is employed as a custodian by petitioner and is a member of respondent. Hesuffered an on-the-job injury and was absent from work for 11 months while receiving workers'compensation benefits, returning to his employment on June 27, 2005. After a disagreementarose between Fetterly and petitioner as to his rate of absenteeism and the effect of his workers'compensation leave on his accrued sick time and his entitlement to certain benefits, respondentfiled three grievances on Fetterly's behalf claiming violations of the collective bargainingagreement (hereinafter CBA).[FN*][*2]
In the first grievance, respondent claimed that petitionerhad improperly failed to award Fetterly three weeks of vacation and 15 additional leave creditsaccrued during his workers' compensation leave. The second grievance alleged that petitionerhad improperly adjusted Fetterly's sick leave credits as to time used during his workers'compensation leave. In the third grievance, respondent asserted that a letter from petitioner'ssuperintendent placed in Fetterly's file regarding his absenteeism, although characterized bypetitioner as a counseling memorandum, was in fact a disciplinary action taken against himwithout just cause and in violation of the requirements of the CBA. The parties submitted threestipulated issues to binding arbitration, one arising out of each grievance. The arbitrator found inrespondent's favor on each. Petitioner commenced this proceeding to vacate the arbitrationaward. Supreme Court granted the petition, finding that the award was irrational, at least in part,and that the arbitrator exceeded his authority. Respondent appeals.
An arbitration award may be vacated under CPLR 7511 (b) (1) (iii) as in excess of thearbitrator's authority only " 'where the arbitrator's award violates a strong public policy, isirrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power' " (Matter of Henneberry v ING CapitalAdvisors, LLC, 10 NY3d 278, 284 [2008], quoting Matter of New York City Tr. Auth. v Transport Workers' Union of Am.,Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]; see Matter of Kowaleski [New York State Dept. of CorrectionalServs.], 61 AD3d 1081, 1082-1083 [2009]). The CBA defines a grievance as "acomplaint by an employee or [respondent] of an alleged violation of any of the terms andconditions of [the CBA]." The CBA limits the scope of arbitration, providing: "Not allgrievances are subject to arbitration. The scope of arbitration and the jurisdiction of the arbitratorare defined under 'Jurisdiction of the Arbitrator.' " That section, in turn, provides: "The arbitratorshall regard the provisions of [the CBA] as the basic principles and fundamental law governingthe relationship of the parties. The arbitrator's function is to interpret the provisions of [the CBA]and to decide cases of alleged violation of such provisions. The arbitrator shall not supplement,enlarge, diminish, or alter the scope of meaning of [the CBA] and its appendices as it exists fromtime-to-time, or any provisions therein, nor entertain jurisdiction of any subject matter notcovered thereby (except to the extent necessary to determine his [or her] jurisdiction). Withoutlimiting the foregoing, the subjects of health insurance and retirement are by this sectionexcluded from arbitration."
The first grievance required the arbitrator to determine whether Fetterly had earned vacationand additional leave credits during his workers' compensation leave. At the outset, the arbitratorfound: "The [CBA] is silent on the question of how, or even if, a workers' compensation absenceaffects an employee's vacation entitlements . . . In the absence of clearlycounterbalancing language, I relied on logic, experience and common sense to discern what the[CBA] implies." The arbitrator then found that Fetterly was an "eligible employee" within themeaning of the CBA and that workers' compensation leave did not interrupt his continuousservice. He therefore concluded that Fetterly had earned three weeks of vacation during hisleave, and further determined that Fetterly was entitled to 15 days of leave credit.
We agree with Supreme Court that, in reaching these determinations, the arbitrator exceededhis authority. The CBA in this case explicitly limits the scope of the arbitrator's authority as setforth above. Upon determining that a subject is beyond his or her jurisdiction, [*3]the CBA directs the arbitrator to dispose of the case by reducingthat finding to writing. The arbitrator "may" then refer the subject back to the parties. The CBAfurther limits the arbitrator's jurisdiction by forbidding him or her to "supplement, enlarge,diminish, or alter [the CBA's] scope of meaning [or to] entertain jurisdiction of any subjectmatter not covered thereby" (emphasis added). While the CBA declares that the "arbitrator'sfunction is to interpret the provisions of [the CBA]," it also explicitly forbids the arbitrator toaddress any subject matter that its provisions do not cover.
An arbitrator's decision may be set aside "where the document expressly limits or isconstrued to limit the powers of the arbitrators, hence, narrowing the scope of arbitration"(Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582 [1977][internal quotation marks and citations omitted]). The arbitrator's determination that the CBAwas "silent" on the subject of the grievance was, itself, within his jurisdiction and beyond thescope of judicial review (see Matter ofCivil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO [State of New York], 15AD3d 748, 750 [2005]). Having made the determination that the subject at issue was notcovered by the CBA, he was forbidden by the explicit terms of the agreement, which bothcreated and limited his power, to entertain jurisdiction of the controversy. Supreme Courttherefore correctly vacated the award on the ground that it "manifestly exceeds a specific,enumerated limitation on the arbitrator['s] power" (Matter of Kowaleski [New York StateDept. of Correctional Servs.], 61 AD3d at 1083 [internal quotation marks and citationomitted]; see Matter of Kocsis [NewYork State Div. of Parole], 41 AD3d 1017, 1019 [2007]).
The second stipulated issue required the arbitrator to determine whether respondent'sgrievance pertaining to petitioner's calculation of the amount of Fetterly's accrued sick leave wasarbitrable. He determined that the parties' dispute was a grievance within the meaning of theCBA because the parties had so treated it throughout the five-step grievance process and becausethe grievance's "Specifics of Violation" alleged violations of the CBA. He found that althoughthe CBA provides that not all grievances are arbitrable and explicitly excludes health insuranceand retirement from arbitration, no exclusionary language in the CBA foreclosed the interactionof sick leave and workers' compensation benefits from arbitration. He therefore found that thequestion was arbitrable. In accord with the parties' stipulation, he did not reach the merits of thisissue.
Supreme Court vacated this determination. In this respect, however, the court erred. Thearbitrator did not find the CBA silent on the subject of the interaction between sick leave andworkers' compensation leave. Instead, he cited a provision in the CBA entitled "Injury Leave"which directly addresses the use of sick leave by employees receiving workers' compensationpayments during absences caused by job-related injuries. His description of the provision as"frustratingly vague" with regard to extended leaves does not permit the court to substitute itsjudgment for the arbitrator's as to whether the provision covered the subject at issue (see Matter of United Fedn. of Teachers,Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d72, 82-83 [2003]). "[C]ourts are obligated to give deference to the decision of the arbitrator"(Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100,AFL-CIO, 6 NY3d at 336). Indeed, the arbitrator's interpretation of the CBA on this pointwould have been insulated from judicial review even if he had misconstrued or disregarded itsplain meaning (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]). Thearbitrator's further determinations that the CBA cloaked him with the authority to determinearbitrability and that the subject in question was arbitrable were interpretations of the CBA thatwere consistent with its grant of jurisdiction to the arbitrator and were neither irrational nor in[*4]excess of his power. Indeed, "[t]o exclude a substantive issuefrom arbitration . . . generally requires specific enumeration in the arbitrationclause itself of the subjects intended to be put beyond the arbitrator's reach" (Matter ofSilverman [Benmor Coats], 61 NY2d at 308). This determination did not fall within the "'narrow grounds,' " on which an arbitration award may be overturned, and should not have beenvacated (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 61 AD3dat 1082, quoting Matter of NFB Inv.Servs. Corp. v Fitzgerald, 49 AD3d 747, 748 [2008]).
As to the third grievance, the arbitrator found that petitioner's placement of the letter inFetterly's file violated paragraph C of article XV of the CBA, which prohibits the placement inpersonnel files of "[m]aterial not reduced to writing within 30 days of the occurrence of theincident(s) or within 30 days of when the administration could reasonably be expected to beaware of the incident(s)." The arbitrator determined that the date on which petitioner couldreasonably have been expected to be aware of the cited incidents was June 27, 2005, and that theplacement of the letter, dated August 10, 2005, in Fetterly's file violated the CBA because thematter was not reduced to writing within 30 days. This was the only violation cited by thearbitrator in the "award" portion of his determination. In the "opinion" section, however, hefound that the letter "ignores article XVIII [of the CBA] and the long-established principles itwarrants." Article XVIII provides, in pertinent part, "No current employee shall be disciplined ordismissed without just cause." Supreme Court held that the arbitrator exceeded his authority inconsidering the intent of petitioner's superintendent in writing the letter and that its placement inFetterly's file did not violate the CBA. Further, the court held that the letter did not constitutediscipline or dismissal and that the CBA did not prohibit petitioner from placing counselingmemoranda in employees' files.
With regard to the arbitrator's examination of the superintendent's intent, respondent arguedbefore the arbitrator that the letter was a reprimand that constituted discipline without just causein violation of the CBA, while petitioner contended that the letter was merely a counselingmemorandum and that its purpose was to counsel or advise rather than to discipline. The CBAdirects the arbitrator to "hear a case or cases in full with findings of fact." The arbitratorconsidered the superintendent's intent along with other factors, such as the letter's tone andcontent and the absence from the record of clear evidence that any counseling had taken place, inthe course of resolving the parties' disagreement as to whether the letter constituted "discipline"within the meaning of the CBA. "The path of analysis, proof and persuasion by which thearbitrator reached [his] conclusion is beyond judicial scrutiny" (Central Sq. Teachers Assn. vBoard of Educ. of Cent. Sq. Cent. School Dist., 52 NY2d 918, 919 [1981]). Hisdetermination that the letter's intent was disciplinary is a factual finding which, even iferroneous, is not subject to judicial review (see Matter of United Fedn. of Teachers, Local 2,AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d at 83;Matter of New York State Correctional Officers & Police Benevolent Assn. v State of NewYork, 94 NY2d 321, 326 [1999]).
Similarly, even if the arbitrator's decision that the letter was disciplinary in nature resultedfrom an error of law (see Holt v Board of Educ. of Webutuck Cent. School Dist., 52NY2d 625, 632-634 [1981]), vacatur would not be warranted, since "absent a provision in thearbitration clause, arbitrators are not bound by principles of substantive law and rules ofevidence" (Matter of Board of Educ. of Oneonta City School Dist. [Moore], 229 AD2d888, 889 [1996]). Supreme Court's determination that the letter did not constitute discipline wasan impermissible substitution of its judgment for that of the arbitrator (see Matter of UnitedFedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City ofN.Y., 1 NY3d [*5]at 82-83; Board of Educ., LakelandCent. School Dist. of Shrub Oak v Barni, 51 NY2d 894, 895 [1980]).
In regard to the letter's timeliness, Supreme Court found that the arbitrator's ruling as to the"trigger date" within 30 days of which the letter should have been reduced to writing wasincorrect because Fetterly had been absent several times after his return to work, including atleast one absence less than 30 days before the letter was written, and because meetings were heldwithin that time period. The letter references none of these events. Instead, it states that itfollows up "our recent conversation upon your return to work" (emphasis added) andcites Fetterly's 11-month workers' compensation leave as well as "prior periods of lengthyabsenteeism in the 2003-2004 school year" and other previous absences as examples of hisexcessive absenteeism. While the letter states that attendance records are attached, it cannot bediscerned whether the records attached to the original letter listed any absences after Fetterlyreturned from his leave because the documents submitted as attachments in this record bear datesindicating that they were generated well after August 2005. Nothing in the letter, therefore,countermands the arbitrator's determination that the date on which petitioner "could reasonablyhave been aware" of the occurrences of excessive absence to which it refers was any time afterFetterly's return to work on June 27, 2005. The arbitrator's determination that the letter was notreduced to writing within 30 days after that date and that its placement in Fetterly's personnel fileviolated the CBA was neither "totally or completely irrational" nor in excess of his power, andshould not have been vacated (Matter of Kowaleski [New York State Dept. of CorrectionalServs.], 61 AD3d at 1083 [internal quotation marks and citations omitted]).
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified,on the law and the facts, without costs, by reversing so much thereof as vacated the arbitrator'sdeterminations on stipulated issue number two and stipulated issue number three, and, as somodified, affirmed.
Footnote *: Respondent also filed a fourthgrievance not involved in this appeal.