Rodriguez v. Consolidated Edison Co. of New York, Inc.

— Judgment, Supreme Court, New York County, pursuant to CPLR 7511 to vacate or modify the arbitration award on the ground that the arbitrator exceeded his powers, and dismissing the petition, affirmed, without costs. Petitioner, an employee of respondent Consolidated Edison Co. of New York, was discharged from his employment on the basis of information from a customer that the petitioner, another employee, and the customer had participated in a scheme to defraud Consolidated Edison. The issue was submitted to arbitration pursuant to rule V(4) of a collective bargaining agreement: “(4) In the determination of grievances arising from the suspension, discharge, release, disciplinary transfer, layoff or demotion in the title or pay, of any employee for cause, the Board of Arbitration shall have the power only to adjudge the sufficiency and reasonableness of the cause stated by The Company. If a majority of the Board shall adjudge- such cause be insufficient and unreasonable, The Company shall reinstate or restore such employee with accumulated seniority and, in case he was penalized by loss of working time, shall pay him his back wages as provided in Rule III hereon less any unemployment or other compensation he may have received during the time of his separation from the payroll of The Company.” In the arbitrator’s decision, after sketching some of the background of the investigation that led to petitioner’s discharge, he expressed doubt as to the credibility of the customer who had inculpated petitioner. On the other hand, he did not believe petitioner’s statement that he had only met the customer once, and implicitly found that petitioner’s behavior gave rise to the appearance of wrongdoing. The arbitrator went on to say: “The testimony was inconclusive in all directions; however I am sure the grievant should not lose his job under these circumstances.” Finally, he concluded that petitioner should be restored to employment but without back pay or benefits for the period of discharge. On this appeal the principal issue is raised by petitioner’s contention that once the arbitrator determined that 812 there was an insufficient basis for discharging him, the arbitrator was required under rule V(4) quoted above, to direct return of back wages and the restoration of lost benefits. In effect petitioner urges as the only reasonable interpretation of the second sentence of rule V(4) that an arbitrator is required to restore all benefits to an employee if he finds insufficient cause for the particular sanction imposed by the employer even though he finds there was misconduct justifying a lesser penalty. We do not agree that this is the only possible interpretation of the contractual language. An obvious alternative construction is that the arbitrator is required to restore back wages and other benefits only if he finds an insufficient basis for concluding that the employee had engaged in any misconduct. Under this construction, the arbitrator was empowered to deny restoration of lost benefits to the petitioner once he had determined that the petitioner’s conduct merited some sanction. This interpretation, the one implicitly adopted by the arbitrator, seems to us more probably correct than the one urged by petitioner. Certainly we do not think it “completely irrational” (see Lentine v Fundaro, 29 NY2d 382, 385, 386; Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 25 NY2d 451, 456, 457). Although not necessary to a determination of this appeal, it may be appropriate to comment briefly on a separate but related issue of interpretation. The first sentence of rule V(4) states that in the determination of grievances arising from varied kinds of disciplinary actions “the Board of Arbitration shall have the power only to adjudge the sufficiency and reasonableness of the cause stated by The Company.” If this were construed to deny any discretion by the arbitrator with regard to the extent of penalties that might be imposed for misconduct, it would suggest that the arbitrator here lacked the power to reinstate petitioner to his employment once he had determined that a sufficient basis for imposing a penalty had been established. On this view of the governing rule, the arbitrator’s decision was in error but the error clearly was not prejudicial to petitioner. However this part of the rule is also susceptible to an alternative and perhaps more probably correct construction. The quoted language may well have been intended to require the arbitrator, in evaluating “the sufficiency and reasonableness of the cause”, to consider only the specifics of the alleged misconduct that gave rise to the disciplinary action and not to consider in connection with that evaluation equitable considerations such as the length of an employee’s prior service and his over-all record. This at any rate was the interpretation implicitly adopted by a highly experienced arbitrator. We think this too was reasonable, and certainly not “completely irrational”. Concur — Kupferman, J.P., Birns and Sandler, JJ.; Carro, J., iissents in part and Fein, J., dissents in separate memoranda as follows.