Arbitrator's award based on a finding of "past practice" did not modify the collective bargaining agreement between the parties

Arbitrator's award based on a finding of "past practice" did not modify the collective bargaining agreement between the parties Matter of Romaine v New York City Tr. Auth., 2011 NY Slip Op 02015, Appellate Division, Second Department The Appellate Division affirmed a Supreme Court decision confirming an arbitration award, noting that "An arbitration award rendered after a consensual arbitration may be vacated by a court only on the grounds set forth in CPLR 7511(b).* The court ruled that the arbitrator had not modified the relevant collective bargaining agreement [CBA] by relying on "past practices" to determine that the New York City Transit Authority was required to assign "shuttle work" to volunteers on its overtime list. The arbitrator essentially determined that a mutual agreement had developed between the parties with respect to "shuttle work" over the past 20 years, which was an integral part of the collective bargaining agreement and "did not negate or bypass an express provision of the CBA." The Appellate Division also rejected the Transit Authority's argument that the arbitration award "violates a strong public policy," commenting that "[T]he scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow." Here, said the court, the Authority failed to show that the "court can conclude without engaging in any extended fact-finding or legal analysis that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that the award itself violates a well-defined law of this State." * The Appellate Division also noted that "A court may vacate an arbitration award on the ground that the arbitrator "exceeded his [or her] powers" within the meaning of CPLR 7511(b)(1)(iii) "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." The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02015.htm .

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