While I agree with the majority’s determination that the arbitrator sustained the assault charge, I must respectfully dissent from the majority’s determination to set aside that part of the arbitration award reducing the penalty against the subject employee from dismissal to reinstatement without back pay.
At the conclusion of a step process convened pursuant to the parties’ Collective Bargaining Agreement (hereinafter CBA), the petitioner, New York City Transit Authority (hereinafter TA), terminated the employee for having assaulted a customer in April 2006. The respondent Transport Workers Union of America, Local 100 (hereinafter TWU), then took the matter to arbitration on behalf of the aggrieved employee. The arbitrator sustained the assault charge, but reduced the penalty imposed from dismissal to a reinstatement without back pay.
The TA then commenced this proceeding under CPLR article 75, seeking to vacate that portion of the award that reduced the penalty, on the ground that the arbitrator had exceeded his power within the meaning of CPLR 7511 (b) (1) (iii). The Supreme Court granted the petition and the TWU appeals. I would reverse the judgment, deny the petition, and dismiss the proceeding.
The pertinent provision of the parties’ CBA provides, inter alia, that where an arbitrator sustains a charge of assault,
“the action by the [TA], 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 [TA] 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” (CBA art II, § 2.1 [C] [19] [c] [emphasis added]).
I agree with my colleagues in the majority that there is no merit to the TWU’s contention that the arbitrator did not sustain the charge of assault. The arbitrator’s consideration of whether the CBA’s exception should be applied would only have been necessary upon sustaining the assault charge. The arbitrator did not state or imply that his analysis of the exception was made on an alternative basis.
*10Where I depart from my colleagues in the majority is their conclusion that in reducing the penalty, the arbitrator’s determination was in excess of his power (see CPLR 7511 [b] [1] [iii]). The relevant CBA provision clearly provides that upon sustaining a charge, the arbitrator may reduce the penalty imposed by the TA if he finds that it “is clearly excessive in light of the employee’s record and past precedent in similar cases” (CBA art II, § 2.1 [C] [19] [c]). Here, the arbitrator determined that the “credible evidence” before him demonstrated that dismissal was “clearly excessive” in light of the employee’s service record and the past precedent proffered by the TA, and thus the circumstances warranted invocation of the “rare[ ]” exception of reducing the penalty sought by the TA “to prevent a clear injustice” (CBA art II, § 2.1 [C] [19] [c]). Given the arbitrator’s proper application of the exception, I respectfully disagree with the conclusion of my colleagues in the majority that the Supreme Court correctly vacated that portion of the arbitration award that reduced the penalty (see CPLR 7511 [b] [1] [iii]; Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]; Matter of Goldberg v Thelen Reid Brown Raysman & Steiner LLP, 52 AD3d 392 [2008]; cf. Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 306 AD2d 486 [2003]).
The only other relevant ground upon which to find that the arbitrator acted in excess of his power would be that the arbitrator’s determination was irrational. To vacate an arbitration award on this ground, the award must be “totally irrational” (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]; see Matter of Tsikitas v Nationwide Ins. Co., 33 AD3d 928 [2006]; Matter of Fine Hummel v Mugavero, 5 AD3d 483 [2004]; Ropal Constr. Corp. v God’s Battalion of Prayer Church, 305 AD2d 577, 578 [2003]; Matter of Transport Workers Union of Am., AFL-CIO, Local 100 v New York City Tr. Auth., 216 AD2d 400 [1995]). Such a determination requires a finding of “no proof whatever to justify the award or [that] the award gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties” (Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d 452, 453 [internal quotation marks and citations omitted]; see Matter of Steinberg v Novitt & Sahr, 54 AD3d 1043 [2008]; Matter of City of Peekskill v Local 456, Intl. Bhd. of Teamsters, 49 AD3d 730 [2008]).
*11Although my colleagues in the majority may disagree with the arbitrator’s decision to reduce the penalty from dismissal to reinstatement without back pay, the record does not support a finding that the arbitrator’s determination was irrational, as it was not unsupported by the record and the arbitrator’s invocation of the exception met the requirements set forth in the pertinent CBA provision. Preliminarily, by finding that the subject employee had committed an assault against a customer, the arbitrator clearly understood the details of the incident. Moreover, although the TA had suspended the subject employee for five days in 1991 for an altercation with a customer, even the majority concedes that such incident, which occurred 15 years before the subject assault, was “remote” in time. More importantly, the subject employee had a 21-year service record, including the past 11 years without disciplinary action. Under the circumstances, the arbitrator’s determination that the employee’s service record did not warrant dismissal for this incident was well reasoned and not irrational (see Matter of Goldberg v Thelen Reid Brown Raysman & Steiner LLP, 52 AD3d 392 [2008]; Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d at 453).
It was also not irrational for the arbitrator to conclude that “substantive differences” rendered the instant case “clearly distinguishable” from those arbitral decisions in other cases the TA submitted in support of its recommendation to dismiss the employee. At the outset, I note that since the TWU was seeking to prevent dismissal of its member, it would have been better practice for it to have submitted arbitral decisions in other cases demonstrating that dismissal in this instance was “clearly excessive.” In any event, the subject CBA provision did not preclude the TWU from relying on those cases cited by the TA. Moreover, even if the arbitrator misapplied the precedent submitted by the TA and relied upon by the TA and the TWU, or erred in distinguishing the cases because they involved corroborating witnesses (who were not at issue in the instant case), vacatur of that portion of the arbitrator’s award reducing the penalty would still not be warranted since even an award predicated on factual errors or the misapplication of substantive legal principles must not be disturbed (see Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d at 336; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]; Central Sq. Teachers Assn. v Board of Educ. of *12Cent. Sq. Cent. School Dist., 52 NY2d 918, 919 [1981); Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 [1979]; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582 [1977]; Matter of County of Westchester v Doyle, 43 AD3d 1055 [2007]; see also Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984] [“absent provision in the arbitration clause itself, an arbitrator is not bound by principles of substantive law or by rules of evidence”]). In addition, despite the TA’s “Zero Tolerance Policy” regarding violence in the workplace, the subject CBA provision clearly vests the arbitrator with the authority to reduce a penalty under certain circumstances, even upon a finding that an employee violated such policy by committing an assault.
Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO (306 AD2d 486 [2003] [hereinafter Hart]), relied upon by the majority, is distinguishable. In that case, the Tripartite Arbitration Board (hereinafter the Board), which at that time had authority to hear grievances, found that the subject TA employee had assaulted a passenger and, relying on the same CBA provision at issue here, “reduced the penalty imposed by the petitioner from dismissal to a time-served suspension, stating in a conclusory manner that the employee had a good disciplinary record” (id. at 486). This Court reversed on the ground that the Board had exceeded its authority inasmuch as no proof had been submitted to the Board that dismissal was “clearly excessive” (id. at 487). Similarly, in Matter of New York City Tr. Auth. v Transport Workers Union of Am. (239 AD2d 421 [1997]), which also involved the same CBA provision at issue here and is also relied upon by the majority, this Court affirmed the vacatur of that portion of the Board’s arbitration award that reduced the penalty for a TA employee found to have assaulted a fellow employee since neither of the exceptions set forth in the CBA provision were applicable. In contrast to both of those cases, here, the arbitrator determined that the arbitral decisions in the cases submitted by the TA and relied upon by both parties as well as the employee’s service and disciplinary record warranted application of the exception. Further, because both cases properly held that the Board erred in invoking the exception by failing to make the necessary findings, there is no need, as my colleagues in the majority suggest, to overrule either case.
In addition, contrary to the majority’s contention, Hart did not implicate the directive in the subject CBA provision that a *13penalty only “rarely” be reduced. Rather, in Hart, vacatur of that portion of the award reducing the penalty was proper because the Board did not set forth both of the required prongs before invoking the exception. In any event, whether these circumstances warranted invocation of the “rare[ ]” exception of reducing the penalty is for the arbitrator to determine, not for the courts.
My colleagues in the majority contend that upholding the award would effectively rewrite the CBA provision by rendering meaningless the language that arbitrators should reduce a penalty only “rarely.” However, even if the possibility existed that the arbitrator may have violated the CBA’s express limitation that the exception should be invoked only “rarely,” vacatur of the award would still be improper (see Matter of Silverman [Benmor Coats], 61 NY2d at 308-309; Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624, 627 [1982]; Matter of West Side Lofts [Sentry Contr.], 300 AD2d 130 [2002]).
Similarly, as the Court of Appeals has explained in the context of school districts, “[s]urrender of the power, or part of it, to the courts or arbitrators in collective bargaining agreements may later prove to be inconvenient” (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]; see Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746 [1978]). However, the remedy for such perceived inconvenience is found at the bargaining table, not in the courts (see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d at 584).
Accordingly, I would reverse the judgment, deny the petition, and dismiss the proceeding.
Dillon and Angiolillo, JJ., concur with Miller, J.; McCarthy, J., dissents and votes to reverse the judgment, on the law, deny the petition, and dismiss the proceeding in a separate opinion, in which Spolzino, J.E, concurs.
Ordered that the judgment is affirmed, with costs.