Labor & Employment Law

Considering past practice in determining an arbitration award

Considering past practice in determining an arbitration award
Matter of Triborough Bridge & Tunnel Auth. v Triborough Bridge & Tunnel Auth. Bridge & Tunnel Officers Benevolent Assn., 2008 NY Slip Op 04206, decided on May 6, 2008, Appellate Division, First Department

An arbitrator ordered the Triborough Bridge and Tunnel Authority ?to cease and desist? from requiring members of the Bridge and Tunnel Officers Benevolent Association to take a break of four hours between the end of a regular shift and the commencement of a voluntary eight-hour overtime shift. The arbitrator found that the ?past practice? was for such individuals to have only a one-hour break between shifts.

The Authority filed an Article 75 action to vacate the arbitrator?s award only to have the Appellate Division affirm a Supreme Court?s dismissal of the Authority?s petition.

The Public Authorities Law empowers the Authority to "acquire, design, construct, maintain, operate, improve and reconstruct" the bridges and tunnels under its jurisdiction and to appoint Bridge and Tunnel Officers (BTOs) and fix their compensation, subject to the provisions of the Civil Service Law [See, PAL Section 553.7].

However, the Appellate Division said the statute ?does not expressly empower the Authority to decide how long BTOs can safely work without a break, or otherwise prohibit, "in an absolute sense," an arbitrator from making that decision.

Accordingly, the Appellate Division ruled that the public policy exception to the scope of an arbitrator's power to resolve disputes does not apply in this instance. Further, said the court, there was nothing in law, rule or regulation that would support the Authority?s argument that the arbitrator wrote a new contract for the parties or otherwise exceeded his authority.

Significantly, the court pointed out that relevant collective bargaining agreement provides that it consists not only of its express terms but also "past practices imbedded in the present understanding of the contract." Accordingly, said the court, the award was rationally based on a finding of a past practice requiring only a one-hour break between shifts.

Full post as published by New York Public Personnel Law on May 08, 2008 (boomark / email).