Asset Protection & Security Services v. Service Employees International Union, Local 200 United

Memorandum: Respondent-petitioner (hereafter, Union) appeals from an order granting the petition seeking to vacate an arbitration award pursuant to CPLR 7511 (b) (1) (iii) and denying the Union’s cross petition seeking to confirm the award pursuant to CPLR 7510. The arbitrator determined that petitioner-respondent, Asset Protection & Security Services, LP (APSS), did not discharge its employee, the grievant herein, upon just cause as required by the collective bargaining agreement (CBA) between the Union and APSS and reinstated the employee with back pay and benefits. We conclude that Supreme Court erred in vacating that part of the award determining that APSS lacked just cause for discharging the employee, and we therefore modify the order accordingly. We agree with the court, however, that the arbitrator exceeded his authority by reinstating the employee and awarding her back pay and benefits, and thus we affirm the order insofar as the court granted those parts of the petition seeking to vacate the award to that extent. APSS contracted with the Bureau of Immigration and Customs Enforcement (ICE) to provide custody officers at a federal detention center in Batavia. APSS and the Union entered into a CBA that provided, inter alia, that APSS had the right to discharge an employee “for just cause reasons or at the request of ICE.” ICE provided APSS with a video tape depicting the employee conversing with a detainee after lockdown, and APSS thereafter terminated the employee. The termination notice provided to the employee stated that she was being discharged based on undue fraternizing with a detainee; allowing a detainee to be out of place after lockdown; and introducing contraband into the facility. We note that fraternizing with a detainee and introducing contraband into the facility are grounds for immediate discharge pursuant to article 9, § 3 (B) (6) of the CBA. APSS and the Union stipulated that the arbitrator was to determine whether APSS had “just cause to terminate the employment of [the grievant] in accordance with article 9 of the parties’ collective bargaining agreement” and that, “[i]f not, what shall the remedy be?” In rejecting the contention of APSS that it had just cause to terminate the employee because ICE had barred her from the facility, the arbitrator determined that APSS was conflating two distinct rights contemplated by the CBA: termination for just cause and termination at the request of ICE, which does not require just cause. In determining that the employee was not terminated for just cause, the arbitrator credited the employee’s testimony that she was permitted to allow the detainee out of his “area” after lockdown for purposes of cleaning within the unit and that, during that time, she was provided with “intel,” i.e., infor [1463] mation regarding the activities of other detainees. The arbitrator further determined that the employee was not aware that hand sanitizer that she dispensed in the detainee’s hand was considered to be a form of contraband and noted that such hand sanitizer in fact was present in dispensers in the facility. The arbitrator was unable to determine whether the employee’s security clearance had been revoked following the termination of her employment. It is axiomatic that “courts are obligated to give deference to the decision of the arbitrator” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]; see Matter of Henneberry v ING Capital Advisors, LLC, 10 NY3d 278, 284 [2008], rearg denied 10 NY3d 892 [2008]). Here, however, the court improperly substituted its own findings for those of the arbitrator by determining that the employee was terminated at the request of ICE; that her security clearance was revoked; and that, because her security clearance had been revoked, she was not entitled to participate in the arbitration proceedings pursuant to the terms of the CBA. The court therefore erred in vacating that portion of the award determining that the employee was not discharged for just cause. We agree with APSS that the arbitrator exceeded his authority by directing that the employee be reinstated and awarding her back pay and benefits, and we thus conclude that the court properly vacated those provisions of the award. Despite the fact that the arbitrator correctly recognized that, pursuant to its contract with ICE, APSS lacked the authority to reinstate the employee to her position, the arbitrator nevertheless “restore[d] her employment record and compensate[d] her for lost wages and benefits.” “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 Communication Workers of Am., Local 1170 v Town of Greece, 85 AD3d 1668, 1669 [2011], quoting New York City Tr. Auth., 6 NY3d at 336; see Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, 1505 [2008], lv denied 11 NY3d 708 [2008]). Here, although the arbitrator found that the employee was not terminated for just cause, he was nevertheless without authority under the terms of the CBA to direct APSS to reinstate her or to compensate her with back pay and benefits. The CBA expressly provides that an employee who is on unpaid administrative leave or is suspended during an investigation [1464] mandated by ICE for an employee action is not eligible for back pay and benefits even in the event that the employee’s security clearance is reinstated and the individual returns to work. If, however, an employee is on unpaid administrative leave or is suspended for a reason “not related to an ICE order to place the employee on administrative leave or suspension,” the employee is entitled to back pay and benefits. Notably, the CBA further provides that “[t]he Arbitrator shall have no power to add to, subtract from, or modify the provisions of this agreement in arriving at a decision of the issue presented and shall confine his or her decision solely to the application and interpretation of this Agreement.” Here, the employee was terminated based upon the actions observed on the video tape provided to APSS by ICE, and we thus conclude that, pursuant to the express terms of the CBA, the employee is not entitled to back pay and benefits and would not be so entitled even if APSS had the authority to reinstate her to her position. We therefore conclude that the arbitrator exceeded his authority by “add[ing] to” the CBA and awarding the employee a remedy that is not permitted. All concur except Garni and Martoche, JJ., who dissent in part and vote to reverse in accordance with the following memorandum.