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

1317
CA 12-01143
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
PROFESSIONAL, CLERICAL, TECHNICAL, EMPLOYEES
ASSOCIATION, PETITIONER-RESPONDENT,

                    AND                           MEMORANDUM AND ORDER

BOARD OF EDUCATION FOR BUFFALO CITY SCHOOL
DISTRICT, RESPONDENT-APPELLANT.


JAECKLE, FLEISCHMANN & MUGEL, LLP, BUFFALO (JAMES N. SCHMIT OF
COUNSEL), FOR RESPONDENT-APPELLANT.

BARTLO, HETTLER & WEISS, KENMORE (PAUL D. WEISS OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     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. 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, noninstructional 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
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                                                        CA 12-01143

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
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                                                           CA 12-01143

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 interpretation of the CBA, provided that one or more
employees, i.e., members of petitioner, met the minimum qualifications
for the AMA positions, respondent could not hire outside the
bargaining unit.

     Contrary to petitioner’s interpretation,   however, the arbitrator
concluded that article 22, § 1 (d) of the CBA   afforded the supervisor
the authority to assess the qualifications of   applicants and to make
the final determination on whom to appoint to   the relevant position.
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                                                         CA 12-01143

The arbitrator relied upon the clause within that provision stating
that “those who qualify in the judgment of the supervisor recommending
the appointment shall be chosen” (emphasis added). The arbitrator
disagreed with petitioner that seniority “trumps” the supervisor’s
discretion. She reasoned that, under petitioner’s interpretation of
the CBA, “any employee, meaning a member of the bargaining unit
working in any department of the [Buffalo City School] District, could
apply for any vacant position and be appointed if minimally qualified,
regardless of the supervisor’s judgment that he or she does not
qualify to perform all the duties of the position. That argument is a
misreading of the contract language.” The arbitrator further
concluded that the term “qualify” as used in the second sentence of
article 22, § 1 (d) did not mean minimally qualified. According to
the arbitrator, “[t]he language of the [CBA] does not obligate
[respondent] to hire the most senior of the [bargaining unit] members
who meets the minimum qualifications. Seniority would apply only if
the supervisor’s judgment finds two or more equally qualified
candidates . . . Clear and unambiguous phrasing gives the supervisor
ultimate authority.”

     Contrary to petitioner’s contention, we conclude that the court
erred in determining that the arbitrator’s interpretation of the
contract is “completely irrational” (National Cash Register Co., 8
NY2d at 383; see Rochester City School Dist., 41 NY2d at 583). The
second sentence of article 22, § 1 (d) of the CBA does not state that
respondent must appoint the most senior employee who meets the minimum
or necessary qualifications for a vacant position, i.e., the minimum
qualifications listed in the recruitment bulletins. Rather, as noted
above, the applicable clause provides that, “[i]n 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). The language therefore is “reasonably
susceptible of the construction given it by the arbitrator[]”
(National Cash Register Co., 8 NY2d at 383). Notably, article 6 of
the CBA, which sets forth the rights of management, provides that,
“except as herein specifically provided to the contrary, [respondent]
and its administrative staff have the unquestioned right to exercise
all normally accepted management prerogatives including,” inter alia,
“[t]o appoint such employees as it may require for the performance of
its duties and responsibilities” and to “fix and determine their
qualifications, duties, job titles and compensation” (emphasis added).
That article therefore supports the arbitrator’s determination that
article 22, § 1 (d) grants the appointing supervisor the authority to
determine the qualifications of candidates for a vacant position where
there is no existing civil service eligibility list.

     We further conclude that the court erred in determining that the
arbitrator impermissibly modified the CBA by allowing respondent to
choose from among all candidates or applicants for the AMA positions
when the CBA refers only to “employees.” Contrary to petitioner’s
contention, the arbitrator did not read the term “employees” out of
the contract or replace that term with the term “applicants” or
“candidates.” Instead, the arbitrator interpreted the disputed
provision to mean that respondent must provisionally appoint the most
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                                                         CA 12-01143

senior employee only when, in the judgment of the applicable
supervisor, two or more employees are qualified for the post. That
interpretation was a proper exercise of the arbitrator’s authority and
did not, as the court concluded, “re-writ[e]” the CBA (see Monroe
County Sheriff’s Off., 79 AD3d at 1798; see generally Albany County
Sheriff’s Local 775 of Council 82, AFSCME, AFL-CIO, 63 NY2d at 656).
Here, although all four of the employee-applicants met the minimum
educational qualifications as set forth in the recruitment bulletins,
the supervisor determined that they were unqualified for the AMA
positions because they were unable to utilize Excel computer software
(Excel) to analyze financial data and make financial projections.
While one of the employee-applicants was “familiar” with Excel, she
could not apply her Excel skills to the assigned task, and the
remaining employee-applicants could not perform basic functions in
Excel. The appointing supervisor testified at the arbitration hearing
that Excel is “required for about 99% of the job duties” of an AMA,
and that testimony was unrefuted. Because none of the employee-
applicants was qualified in the judgment of the appointing supervisor,
respondent hired two nonemployees who demonstrated their proficiency
in using Excel.

     Because we conclude that the arbitrator’s interpretation of the
agreement is not “completely irrational,” her interpretation is beyond
our power of review (see Rochester City School Dist., 38 AD3d at
1153). Thus, the arbitration award must be confirmed (see Monroe
County Sheriff’s Off., 79 AD3d at 1798; Buffalo Council of Supervisors
& Adm’rs, Local No. 10, Am. Fedn. of School Adm’rs, 75 AD3d at 1068-
1069; Buffalo Teachers Fedn., Inc., 67 AD3d at 1402-1403).




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
