In re Arbitration between Buffalo Professional Firefighters Ass'n & Masiello

Gorski, J. (dissenting).

We concur with the majority that the *113arbitration panel majority erred in addressing the issue of health insurance benefits inasmuch as that issue was not a matter in dispute at the time that the panel majority made its award. However, we cannot agree with the majority that the panel majority’s award complied with the requirements of Civil Service Law § 209 (4) (c) (v) with respect to the issue of wage increases.

As the majority correctly notes, Civil Service Law § 209 (4) (c) (v), the statute at issue herein, is clear and unambiguous. It provides that

“the public arbitration panel shall make a just and reasonable determination of the matters in dispute. In arriving at such determination, the panel shall specify the basis for its findings, taking into consideration, in addition to any other relevant factors, the following:
“a. comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours, and conditions of employment of other employees performing similar services or requiring similar skills under similar working conditions and with other employees generally in public and private employment in comparable communities.
“b. the interests and welfare of the public and the financial ability of the public employer to pay;
“c. comparison of peculiarities in regard to other trades or professions, including specifically, (1) hazards of employment; (2) physical qualifications; (3) educational qualifications; (4) mental qualifications; [and] (5) job training and skills;
“d. the terms of collective agreements negotiated between the parties in the past providing for compensation and fringe benefits, including, but not limited to, the provisions for salary, insurance and retirement benefits, medical and hospitalization benefits, paid time off and job security” (emphasis added).

In our view, the plain language of the statute requires an arbitration panel to do more than merely parrot that language by reporting-in a conclusory fashion that it took into consideration the four enumerated factors. Indeed, the Legislature care*114fully crafted the language of the statute by stating that “the panel shall make a just and reasonable determination of the matters in dispute,” thus rendering mandatory the arbitration panel’s consideration of the four enumerated factors, and compliance with the statute is lacking in the absence of specific discussion of those factors (see generally Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003]). We therefore are unable to discern the basis for the statement , of the majority that the statute “plainly does not require discussion of each of the statutory factors or those factors put in issue by the parties.”

The Legislature, with the approval of the Governor, enacted significant changes in the language of Civil Service Law § 209 shortly after the Court of Appeals decided Caso v Coffey (41 NY2d 153 [1976]) and Matter of City of Buffalo v Rinaldo (41 NY2d 764 [1977]), which essentially stood for the proposition that, if there was any rational basis for the panel’s award, it could be sustained. The Governor’s Approval Memorandum stated:

“These changes impart to the Courts the wisdom of the Legislature that judicial review must be strengthened so that it operates as an effective safeguard against arbitral abuses. This bill is intended to narrow the expansive authority accorded to arbitrators by the Court of Appeals in City of Buffalo v. Rinaldo and to make it clear that arbitrators must make findings with respect to each statutory criterion which the parties put in issue, that each such finding must have an evidentiary basis in the record, and that the arbitrators must specify in their final determination what weight was given to each finding and why” (Governor’s Mem approving L 1977, ch 216, 1977 NY Legis Ann, at 129 [emphasis added]).

In Matter of Buffalo Police Benevolent Assn. v City of Buffalo (82 AD2d 635, 638 [1981]), this Court held that, pursuant to the subject statute, an arbitration panel “must specifically exhibit that it took into consideration, in addition to other relevant factors,” the factors set forth in Civil Service Law § 209 (4) (c) (v). Unlike the majority, we do not believe that the legal principles expressed in that decision should be disavowed. As we stated therein, citing to the legislative history of the statute, “[t]he specificity requirement is intended to tighten the procedures in compulsory arbitration, to facilitate meaningful judicial review *115of arbitration determinations and to insure that an arbitrator’s work was rational and not arbitrary or capricious” (id.). Moreover, in a proceeding pursuant to CPLR article 75, the courts have both the power and the duty to ensure that an arbitration panel has not acted in excess of the authority given by statute or “in disregard of the standard prescribed by the legislature” (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 506 [1970], rearg denied 27 NY2d 737 [1970]). Compliance with the statutory mandate of specificity, therefore, is necessary to permit the prescribed degree of review by the courts and to encourage confidence in the arbitration procedure. We conclude that the failure of an arbitration panel to provide an adequate specification concerning the basis of its findings with respect to each of the factors enumerated in the statute requires vacatur of the award with respect to the issue of wage increases (see City of Yonkers v Mutual Aid Assn. of Paid Fire Dept. of City of Yonkers, Local 628, Intl. Assn. of Fire Fighters, AFL-CIO, 80 AD2d 597 [1981]).

We further disagree with the majority that specific discussion of the factors enumerated in the statute requires arbitration panels “to engage in unnecessary discussion,” particularly where, as here, one of those factors is put in issue by a party. Here, petitioner specifically requested that the arbitration panel undertake a comparison of the firefighters’ wages with the wages of Rochester firefighters, a statutory factor that mandates consideration, yet the panel majority failed to address that issue in its award. Indeed, the only issue discussed at any length by the panel majority was parity with the City of Buffalo police. There was scant discussion, except in conclusory fashion, of the peculiarities of the work of petitioner’s members, pursuant to the statutory factor set forth in section 209 (4) (c) (v) (c). Thus, in our view, the award with respect to the issue of wage increases is not in compliance with the statute, and the record does not reflect, as the majority asserts, “that the panel majority properly considered all of the statutory factors and set forth, with the requisite specificity, the basis for its findings in making its award” (emphasis added). In our view, Supreme Court properly granted the petition with respect to the issue of wage increases based on the panel majority’s failure to address fully, at a minimum, the four factors enumerated in Civil Service Law § 209 (4) (c) (v) and thus properly granted the petition in its entirety.

Accordingly, we would affirm the order.

*116Scudder, EJ., and Peradotto, J., concur with Lunn, J.; Gorski and Green, JJ., dissent in part and vote to affirm in a separate opinion by Gorski, J.

It is hereby ordered that the order so appealed from is modified on the law by denying the petition in part and confirming the arbitration award with respect to wage increases and as modified the order is affirmed without costs.