Opinion
April 7, 1978
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Dillon, Hancock, Jr., Denman and Witmer, JJ.
Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: On the evidence before her the arbitrator properly ordered payment to the grievant Frances Kaczor of an amount equal to the salary she would have received if she had been employed on a full-time basis in the 1974 summer school without providing for a setoff of $450 which it is now conceded she received for her work on a curriculum development project. Respondents called no witness and offered no proof before the arbitrator to establish their right to such setoff which they now assert. Since there is no dispute as to the amount that the grievant would have earned from summer school work, in accordance with the arbitrator's award respondents were required to pay to grievant the sum of $1,492. Respondents cannot claim credit for the $450 received by grievant on the curriculum development project, and Special Term improperly denied her entitlement to such sum with interest from the date of the judgment confirming the award. However, there is no indication that respondents have acted in bad faith or out of a desire to frustrate the rights of the grieved employee. It appears that the payment of the award by respondents, while taking a credit for the $450 earned by grievant on the curriculum development project during the period covered by the award, resulted from a misinterpretation of the award by respondents and did not demonstrate a contumacious attitude on their part or any purpose to obstruct the administration of justice. It would therefore not serve the interests of justice to grant petitioner's motion that respondents be adjudged in contempt for their failure to make such payment (see National Labor Relations Bd. v Brashear Frgt. Lines, 127 F.2d 198; Matter of Pearl Riv. Teachers Assn. v Westbrook, 57 A.D.2d 570).