Matter of Bridge & Tunnel Officers Benevolent Assn. v Triborough Bridge & Tunnel Auth.

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Matter of Bridge & Tunnel Officers Benevolent Assn. v Triborough Bridge & Tunnel Auth. 2011 NY Slip Op 32694(U) October 13, 2011 Supreme Court, New York County Docket Number: 106024/11 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] i SUPREME COURT OF THE S , PRESENT: LCYNTHiA K h S. @ E OF NEW YORK - NEW YORK COUNTY J.S.C* B ART P, 51 r - I Iirctfrn - Index Number : 106024/2011 INDEX N O . BRIDGE AND TUNNEL OFFICERS I TRIBOROUGH BRIDGE AND TUNNEL /I MOTION DATE I/ 0 1 M O T I O N SEQ. NO. SEQUENCE NUMBER : 001 MOTION CAL. NO. - VACATE OR MODIFY AWARD l thls motlon to/for I1 I Notice, of Motlod Order to Show Cause - Affldavita - Exhibits ... Answering Affidavits - Exhiblts 1. VI v Replying Affidavitlr 2 0 3 K I Cross-Motion: 0 Yes No ., Upon the foregoing papers, It Is ordered that thls motion PK Dated: CYNTHIA S. KERN I >heck one: FINAL DISPOSITION Check if appropriate: J.S.C. 0 NON-FINALJ.s.c. DISPOSITION 0 DO NOT POST REFERENCE [* 2] BRIDGE AND TUNNEL OFFICERS BENEVOLENT AS SOCIATION, Petitioner, Index No. 11-06024 For an Order Modifying an Arbitration Award under Article 75 o f the CPLR -against- TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY . . Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Numbered Papers Notice of Motion and Affidavits Annexed.................................... Notice of Cross Motion and Answering Affidavits ....................... Affirmations in Opposition to the Cross-Motion.......................... Replying Affidavits.. .................................................................... Exhibits...................................................................................... - ........ ..- . 1 2, 3 4 -- In this Article 75 proceeding, petitioner the Bridge and Tunnel Officers Benevolent Association (( BTOBA or petitioner or the Union ) seeks to vacate or modify the arbitration award dated February 20,201 1. This court denies the petitioner s request for the reasons set forth below. The relevant facts are as follows. BTOBA is a labor organization. Respondent, the Triborough Bridge and Tunnel Authority (the Authority ) is a public benefit corporation - [* 3] established pursuant to the New York Public Authorities Law and is responsible for maintaining, operating, acquiring, designing, constructing, improving and reconstructing the seven toll bridges and two toll tunnels that connect the five boroughs of the City of New York. The Authority hires Bridge and Tunnel Officers ( BTOs ) to maintain and control these facilities. BTOBA is authorized to negotiate collectively on behalf of the BTOs. The Authority and the BTOBA have entered into collective bargaining agreements, the latest of which, as amended, covers the period of March 1,2006 to May 17, 2009 and is applicable here (the CBA ). The CBA provides that as a third and terminal step in the grievance procedure the Authority and the [BTOBA] agree to filial and binding arbitration for all issues arising out of the interpretation and application of the parties agreement....) CBA Article X Section 3. The Authority haridles the scheduling and location assignments of BTOs based upon operational needs and staffing capability. BTOs may bid on the schedules on the basis of seniority. The only article of the CBA which is relevant to scheduling provides that The schedules for all facilities when fully developed shall have no more than three lines manned by full time temporary BTOs. The Authority retains the right to use full time temporary BTOs in accordance with the agreement of August 9, 1978 relating to utilization of non-permanent employees. The remaining scheduled lines shall be manned by full-time permanent BTOs. CBA, Article XXV Section 1(B). A Zipper Clause states that This Agreement plus past practices embedded in the present understanding of the contract all constitute the entire agreement of the parties ... Article Xxrv Section 4. On or about October 13,2009, the BTOBA filed a grievance alleging that the Authority violated Article XIV Section 1(B) of the CBA and past practice by instituting new schedules at [* 4] its Henry Hudson Bridge ( HHB ) facility because the number of lines in those schedules did not correspond to the number of BTOs assigned to that part. The Authority denied the grievance. Subsequently, the BTOBA issued a formal demand for arbitration. A hearing was held by arbitrator Gayle Gavin and both parties submitted post-hearing briefs. On February 20, 201 I , the arbitrator issued an Opinion and Award determining that there was no basis to conclude that the Authority had violated the CBA or past practices when establishing the subject schedules. The BTOBA then filed the present application. It is well settled that the court may only vacate an arbitration award where the rights of the party seeking vacatur were prejudiced by: (i) corruption, fraud or misconduct in procuring the: award; or (ii) partiality of an arbitrator appointed as a neutral ...; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted w s not made; or (iv) f&-e a to follow the procedure of this article ... CPLR 75 11(b)( 1). The only provision at issue in the instant case is whether the arbitrator exceeded his power. The courts have held that an arbitrator exceeds his power when the award is completely irrational.. . or where the document [in which the parties agree to arbitration] expressly limits or is construed to limit the power of the arbitrators. Rochester City School District v Rochester Teachers Association, 41 N.Y.2d 578,582 (I 977). An arbitrator has not necessarily exceeded his power even if he exceeded the power a court would have had if the parties had chosen to litigate, rather than arbitrate the dispute. Id. Furthermore, courts may not set aside an award because they feel that the arbitrator s interpretation disregards the apparent, or even the plain, meaning of the words. Id. h the instant case, the arbitrator did not exceed her power. Her determination that there [* 5] was no basis to support the Union s argument that the subject schedule violated the CBA or past practices was not completely irrational. The arbitrator s interpretation of the contractual clause cited above, which makes no explicit mention of matching the number of lines on a schedule to the number of BTOs, was rational. Whether this court would have interpreted the provision the same way is irrelevant. Similarly, it was within the arbitrator s authority to both determine the meaning of past practices in the contract and to evaluate the evidence regarding what those past practices consisted of. Petitioners have not submitted any evidence to suggest the arbitrator exceeded her power in finding that the new schedule did not violate past practices. Accordingly, the petition is denied. This constitutes the decision, judgment and order of the court. 4

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