        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

671
CA 11-00125
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF COMMUNICATION WORKERS OF
AMERICA, LOCAL 1170, PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF GREECE, RESPONDENT-RESPONDENT.
---------------------------------------------
IN THE MATTER OF TOWN OF GREECE,
PETITIONER-RESPONDENT,

                    V

CWA LOCAL 1170 (GOLD BADGE CLUB),
ON BEHALF OF THOMAS SCHAMERHORN,
RESPONDENT-APPELLANT.


PETER C. NELSON, PITTSFORD, FOR PETITIONER-APPELLANT AND RESPONDENT-
APPELLANT.

COUGHLIN & GERHART, LLP, BINGHAMTON (PAUL J. SWEENEY OF COUNSEL), FOR
RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered November 10, 2010 in a proceeding pursuant to CPLR
article 75. The order, insofar as appealed from, vacated in part the
arbitration award.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the petition is granted
in its entirety, the cross petition is denied and the arbitration
award is confirmed.

     Memorandum: Petitioner-respondent, Communication Workers of
America, Local 1170 (Union), appeals from an order that, inter alia,
granted the cross petition (improperly denominated “petition”) of
respondent-petitioner, Town of Greece (Town), seeking to vacate in
part an arbitration award pursuant to CPLR 7511 (b) (1) (iii). The
arbitrator sustained various disciplinary charges against the
grievant, a Town police sergeant who is a Union member, and determined
that “[t]he Town had just and sufficient cause to demote” the
grievant. The arbitrator further determined, however, that a
permanent demotion was unreasonable and arbitrary, and he thus
converted that penalty to a demotion for a term of one year. The
Union commenced this proceeding seeking to confirm the arbitration
                                 -2-                           671
                                                         CA 11-00125

award pursuant to CPLR 7510, and the Town filed a cross petition
seeking to vacate the award in part on the ground that the award
exceeded the scope of the arbitrator’s authority (see CPLR 7511 [b]
[1] [iii]).

     We agree with the Union that Supreme Court erred in vacating that
part of the arbitration award reducing the grievant’s penalty to a
demotion for a term of one year and remitting the matter “to the Town
for reconsideration of the penalty to be imposed upon” the grievant.
An award may be vacated on the ground that an arbitrator exceeded his
or her power “only where the arbitrator’s award violates a strong
public policy, is irrational or clearly exceeds a specifically
enumerated limitation on the arbitrator’s power” (Matter of New York
City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO,
6 NY3d 332, 336; see Matter of Buffalo Teachers Fedn., Inc. v Board of
Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, 1505, lv
denied 11 NY3d 708; Matter of North Country Community Coll. Assn. of
Professionals [North Country Community Coll.], 29 AD3d 1060, 1061-
1062, lv denied 7 NY3d 709). It is well established that “an
arbitrator has broad discretion to determine a dispute and fix a
remedy[] and that any contractual limitation on that discretion must
be ‘contained, either explicitly or incorporated by reference, in the
arbitration clause itself’ ” (Matter of State of New York [Dept. of
Correctional Servs.] [Council 82, AFSCME], 176 AD2d 1009, 1010, lv
denied 79 NY2d 756, quoting Matter of Board of Educ. of Dover Union
Free School Dist. v Dover-Wingdale Teachers’ Assn., 61 NY2d 913, 915).
“To exclude a substantive issue from arbitration, therefore, generally
requires specific enumeration in the arbitration clause itself of the
subjects intended to be put beyond the arbitrator’s reach” (Matter of
Silverman [Benmor Coats], 61 NY2d 299, 308, rearg denied 62 NY2d 803).

     Pursuant to the applicable collective bargaining agreement (CBA),
“[t]he arbitrator shall confine himself [or herself] solely to the
review of the determination of guilt or innocence of the grievant and
determine whether or not the decision was based upon clear and
convincing evidence. The arbitrator shall be precluded from any
determination . . . with respect to the penalty imposed upon the
grievant except where the penalty imposed is found to be unreasonable,
arbitrary or capricious.” Here, the arbitrator recognized that the
CBA limited his “authority in passing on penalties for proven
misconduct.” He thus specifically found that “the penalty of a
permanent demotion was unreasonable and arbitrary . . . because . . .
[i]t is not supported by evidence that the grievant cannot competently
perform the duties of sergeant . . . .”

     We reject the contention of the Town that, although the CBA
authorizes the arbitrator to determine that the imposed punishment is
“unreasonable, arbitrary or capricious,” it does not authorize the
arbitrator to modify an imposed penalty or fashion a new penalty. The
CBA specifically provides that, “where the penalty imposed is found to
be unreasonable, arbitrary or capricious,” the arbitrator may make a
determination “with respect to the penalty imposed upon the grievant .
. . .” The Town’s contention that an arbitrator who determines that
                                 -3-                           671
                                                         CA 11-00125

the imposed penalty is unreasonable, arbitrary or capricious must
remit the matter to the Town for the purpose of fashioning a different
penalty conflicts with the provision in Article 19 of the CBA that
“[t]he decision of the arbitrator shall be final and binding upon both
parties to the dispute.” In any event, we note that it is the
arbitrator, not the trial court or this Court, that is “charged with
the interpretation and application of the [CBA]” (New York City Tr.
Auth., 6 NY3d at 336; see Matter of New York State Correctional
Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321,
326-327). “[C]ourts may not set aside an award because [they] feel
that the arbitrator’s interpretation disregards the apparent, or even
the plain, meaning of the words or resulted from a misapplication of
settled legal principles” (Rochester City School Dist. v Rochester
Teachers Assn., 41 NY2d 578, 582; see Binghamton Civ. Serv. Forum v
City of Binghamton, 44 NY2d 23, 30). Here, “[a]lthough a different
construction could have been accorded to the subject provision of the
[CBA], . . . it cannot be stated that the arbitrator gave a completely
irrational construction to the provision in dispute and, in effect,
exceeded [his] authority by making a new contract for the parties”
(Matter of New York City Tr. Auth. v Local 100, Transp. Workers Union
of Am., 127 AD2d 596, 597, lv denied 70 NY2d 604).

     Further, although the CBA does not explicitly authorize an
arbitrator to substitute an appropriate penalty upon determining that
the penalty imposed by the Town is unreasonable, arbitrary or
capricious, there is likewise no such “specifically enumerated
limitation on the arbitrator’s power” (New York City Tr. Auth., 6 NY3d
at 336; see North Country Community Coll. Assn. of Professionals, 29
AD3d at 1062). We therefore conclude that the arbitrator did not
exceed his authority in modifying the grievant’s penalty from a
permanent demotion to a demotion for a term of one year.




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
