Opinion
February 2, 1987
Appeal from the Supreme Court, Kings County (Spodek, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the cross petition is granted to the extent that the arbitrator's award is confirmed.
Under a collective bargaining agreement between the parties, an arbitrator was designated to review a "Step IV" grievance procedure decision sustaining charges against a trackworker and dismissing him from service. The trackworker had been suspended from service after being charged with sleeping during his tour of duty, being under the influence of alcohol, and refusing to take a blood-alcohol test as ordered by his supervisor.
After a hearing, the arbitrator issued an opinion and award which found that the petitioner sustained its charges against the employee. However, in view of the employee's 17 years of service, the arbitrator modified the "Step IV" decision of the Hearing Officer to dismiss him from service, to "a suspension of time served with a warning, final and absolute, that future charges, if proven, may lead to his dismissal". The reinstatement was also made contingent upon the employee's participation, on a regular basis, in the employee counseling service, with the arbitrator retaining jurisdiction of the case to insure his compliance with the terms of the award.
In a proceeding, inter alia, to modify the award, the petitioner contended that the arbitrator exceeded her authority under the collective bargaining agreement. It relied upon paragraph "F" of article VI of the agreement, which provides that the petitioner's action must be affirmed when an arbitrator sustains charges involving intoxication on the job, "except if there is presented to the Impartial Arbitrator credible evidence that the action by the Transit Authority is clearly excessive in light of the employee's record and past precedent in similar cases". The provision concludes by stating that the parties to the agreement understand that "this exception will be used rarely and only to prevent a clear injustice". The court found that the award was "grossly violative of the rules provided in the underlying contract".
On this appeal, the appellant contends that the court improperly substituted its judgment for that of the arbitrator (see, e.g., Binghamton Civ. Serv. Forum v. City of Binghamton, 44 N.Y.2d 23). We agree. Although a different construction could have been accorded to the subject provision of the agreement, in reviewing the subject award it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded her authority by making a new contract for the parties (see, Matter of National Cash Register Co. [Wilson], 8 N.Y.2d 377, 383). Thompson, J.P., Bracken, Brown and Eiber, JJ., concur.