New York City Transit Authority v. Patrolmen's Benevolent Ass'n

Brown, J. P.,

dissents and votes to reverse the judgment appealed from, deny the petition and to grant the cross petition to confirm the arbitration award, with the following memorandum: Contrary to the view expressed by Special Term and my colleagues in the majority, I conclude that the arbitrator did not act in excess of his powers in determining that the petitioner’s unilateral change in the duty chart for the City Wide Patrol Services Unit constituted a violation of the collective bargaining agreement between the petitioner and the appellant.

The City Wide Patrol Services Unit is a volunteer unit whose members are assigned to patrol trains and stations in connection with special events, during rush hours, near schools when conditions warrant, and during the summer months at the city’s beaches. The unit has historically worked under a different duty chart than the rest of the department. The change in the duty chart had the effect of altering the work schedule of the members of the unit from a fixed nonrotating shift of five days on and two days off, with most officers having weekends off and with an additional day off every three weeks, to rotating shifts with four days on and two days off. The arbitrator’s determination was based upon his finding that the duty chart change was punitive in nature, coming as it did on the heels of a job action, and excluding from its effect a few officers who did not participate in the job action, and upon his further finding that since the existing duty charts were promulgated as a result of collective bargaining, absent an immediate need, changes in the charts should not be made unilaterally.

Under CPLR 7511 (b) (1) (iii), an arbitrator’s award will not be vacated unless it is violative of a strong public policy, is totally irrational, or exceeds a specifically enumerated limita*710tion on his power (Matter of Silverman [Benmor Coats], 61 NY2d 299; Matter of County of Suffolk v Suffolk County Local 852, 125 AD2d 395). I find none of the reasons for vacatur present in this case.

Clearly, it cannot be argued that there exists any violation of public policy in the arbitrator’s award and the petitioner makes no such claim. Nor can it be said that the award constitutes an irrational interpretation of the parties’ agreement. Indeed, "[a]n arbitrator’s interpretation may even disregard 'the apparent, or even the plain, meaning of the words’ of the contract before him and still be impervious to challenge in the courts” (Matter of Albany County Sheriff’s Local 775 [County of Albany] 63 NY2d 654, 656, quoting from Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582). The interpretation here that the parties’ agreement did not contemplate unilateral changes in the duty charts cannot be said to be irrational. Those duty charts clearly had a bearing on an officer’s ability to accumulate overtime and, as found by the arbitrator, section 2 of article VII of the agreement indicated that this was a proper subject for collective bargaining.

Nor do I find any basis for concluding that the arbitrator exceeded his power under the arbitration clause of the collective bargaining agreement. Any limitation on the power of the arbitrator "must be set forth as part of the arbitration clause itself, for to infer a limitation from the substantive provisions of an agreement containing an arbitration clause calling for arbitration of all disputes arising out of the contract, or for arbitration in some other broadly worded formulation, is to involve the courts in the merits of the dispute—interpretation of the contract’s provisions—in violation of the legislative mandate” (Matter of Silverman [Benmor Coats] supra, at 307).

The arbitration clause at bar provides that: "The Impartial Arbitrator, in rendering any opinion or determination, shall be strictly limited to the interpretation and application of the provisions of this Agreement, or of any written working condition, rule or resolution of the Authority governing or affecting Police Officers, and he shall be without any power or authority to add to, delete from, or modify any of the provisions of this Agreement, of such working conditions, rules or resolutions”. In rendering his award, the arbitrator referred to specific provisions of the agreement with respect to work schedules and the role of management discretion and thus was acting in accordance with his mandate to interpret the agreement. Similarly, it cannot be said that the arbitrator’s refer*711ence to the past practices of the parties in this area renders his interpretation irrational or in excess of the scope of his authority to interpret the agreement (see, Matter of Board of Educ. [Hess], 49 NY2d 145, 153). Moreover, in interpreting an agreement, an arbitrator is empowered to do justice and may render an award which reflects the spirit rather than the letter of the agreement (see, Matter of County of Suffolk v Suffolk County Local 852, supra). Accordingly, the arbitrator’s conclusion that petitioner’s conduct constituted an improper punitive use of the agreement also serves as a proper basis for his interpretation of the agreement.

Under the circumstances, I conclude that the award should be confirmed.