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In the Matter of the Arbitration Between

February 1, 2013

IN THE MATTER OF THE ARBITRATION BETWEEN PROFESSIONAL, CLERICAL, TECHNICAL, EMPLOYEES ASSOCIATION, PETITIONER-RESPONDENT, AND AND BOARD OF EDUCATION FOR BUFFALO CITY SCHOOL DISTRICT, RESPONDENT-APPELLANT.


Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered October 7, 2011 in a proceeding pursuant to CPLR article 75.

Matter of Professional, Clerical, Tech., Employees Assn. (Board of Educ. for Buffalo City Sch. Dist.)

Released on February 1, 2013

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

The order and judgment, among other things, granted petitioner's application to vacate an arbitration award.

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the petition is denied, the cross petition is granted and the arbitration award is confirmed.

Memorandum: Petitioner, the negotiating representative for full-time, non-instructional staff employed by the Buffalo City School District, commenced this CPLR article 75 proceeding seeking to vacate an arbitration award in favor of respondent. Respondent appeals from an order and judgment granting petitioner's application to vacate the arbitration award and denying respondent's cross petition to confirm the award. We agree with respondent that Supreme Court erred in vacating the arbitration award inasmuch as it is not irrational and the arbitrator did not exceed a specific limitation on her authority.

It is well established that "an arbitrator's rulings, unlike a trial court's, are largely unreviewable" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534). Thus, "a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (id.; see generally CPLR 7511 [b] [1] [iii]). "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact' " (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 91, quoting Falzone, 15 NY3d at 534; 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 72, 79). Indeed, an arbitrator's interpretation of a collective bargaining agreement "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" (Matter of Albany County Sheriff's Local 775 of Council 82, AFSCME, AFL-CIO [County of Albany], 63 NY2d 654, 656, quoting Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582). As the Court of Appeals explained, "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326).

Of the three "narrow grounds" that may form the basis for vacating an arbitration award (United Fedn. of Teachers, Local 2, AFT, AFL-CIO, 1 NY3d at 79; see Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, 123), only the irrational and exceeding enumerated limitations grounds are at issue here. "An award is irrational if there is no proof whatever to justify the award" (Matter of Lucas [City of Buffalo], 93 AD3d 1160, 1164 [internal quotation marks omitted]; see Matter of Buffalo Council of Supervisors & Adm'rs, Local No. 10, Am. Fedn. of School Adm'rs [Board of Educ. of City School Dist. of Buffalo], 75 AD3d 1067, 1068). So long as an arbitrator "offer[s] even a barely colorable justification for the outcome reached," the arbitration award must be upheld (Matter of Monroe County Sheriff's Off. [Monroe County Deputy Sheriffs' Assn., Inc.], 79 AD3d 1797, 1799 [internal quotation marks omitted]; see Matter of Buffalo Teachers Fedn., Inc. [Board of Educ. of Buffalo City School Dist.], 67 AD3d 1402, 1402).

An award may be set aside on the ground that an arbitrator exceeded his or her power "only if the[ arbitrator] gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties" (Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383; see Rochester City School Dist., 41 NY2d at 583). "The mere fact that a different construction could have been accorded the provisions concerned and a different conclusion reached does not mean that the arbitrator[] so misread those provisions as to empower a court to set aside the award" (National Cash Register Co., 8 NY3d at 383; see United Fedn. of Teachers, Local 2, AFT, AFL-CIO, 1 NY3d at 82-83; Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979, 981). Rather, so long as the contractual language is "reasonably susceptible of the construction given it by the arbitrator[]," a court may not vacate the award (National Cash Register Co., 8 NY2d at 383; see Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO, 27 AD3d at 981).

Here, the issue before the arbitrator was whether respondent's selection process in filling two vacancies in the newly-created title of Assistant Management Analyst (AMA) violated the collective bargaining agreement (CBA) between petitioner and respondent, and the arbitrator concluded that it did not. We conclude that the arbitrator's decision was neither irrational, i.e., wholly without supporting proof (see Lucas, 93 AD3d at 1164; Buffalo Council of Supervisors & Adm'rs, Local No. 10, Am. Fedn. of School Adm'rs [Board of Educ. of City School Dist. of Buffalo], 75 AD3d at 1068), nor was it made in excess of her power (see Matter of Rochester City School Dist. [Rochester Teachers Assn. NYSUT/AFT-AFL/CIO], 38 AD3d 1152, 1153, lv denied 9 NY3d 813). Article 23, § 1 (e) of the CBA provides that "[t]he arbitrator . . . shall limit his [or her] decision to the application and interpretation of the [CBA]" and that "[t]he decision of the arbitrator shall be final and binding upon the parties." Article 23, § 2 (g) further provides that the arbitrator lacks the power "to amend, modify, or delete any provision of th[e CBA]." The issue before the arbitrator primarily concerned her interpretation and application of article 22, § 1 (d) of the CBA, which provides as follows:"Should a new position or a permanent vacancy occur in a job title included in the bargaining unit which cannot be filled by reason of the absence of appropriate eligibility list, then in such case, an appropriate notice of the said opening shall be posted on all bulletin boards for a period of ten (10) working days, stating the job title, pay rate, job location, and necessary qualifications for the job. In filling the vacancy, the employee with the greatest seniority among those who qualify in the judgment of the supervisor recommending the appointment shall be chosen" (emphasis added).

In seeking to vacate the arbitration award, petitioner contended that the above provision of the CBA required respondent to select the most senior member of its bargaining unit who met the minimum qualifications for the AMA positions posted in respondent's recruitment bulletins, i.e., a bachelor's degree in business administration or public administration or an associate's degree in those fields plus two years of experience. Petitioner relied on the use of the term "employee" in the CBA----defined as "permanent, probationary, or provisional personnel, or those who have been in Board Service on a full time basis for six (6) consecutive months or more"----as opposed to the terms "candidate" or "applicant." Under petitioner's ...


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