Rodriguez v. Consolidated Edison Co. of New York, Inc. ( 1981 )

Carro, J.

(dissenting in part). I would modify to the extent of deleting that portion of the award which denied petitioner back pay or benefits and would otherwise affirm. While inartistic and inexact, the meaning of the arbitrator in his award, that the discharge of petitioner employee was not for just and reasonable cause, is clear. He states, in conclusion, “however I am sure that grievant should not lose his job under these circumstances * * * He is to be returned to work the pay period following receipt of this Award — but without back pay or benefits for the time out.” The language of the collective bargaining agreement concerning the power of the arbitrator, as quoted by both the majority and the dissent, is plain, unambiguous and mandatory. We ought not speculate that the result may be impractical or inequitable where the arbitrator finds that some penalty should be provided, though there is insufficient “just and reasonable cause” for the employee’s discharge. The power of the arbitrator is strictly circumscribed by the terms of the agreement, and he is in an “all or nothing” situation. The remedy is not in avoidance by reading what should have been into the agreement but only in the vacating of the offending language of the award and in the future amendment of those terms of the agreement, should that be within the contemplation of the parties. However, the award need not be totally vacated in every instance in which an arbitrator exceeds his authority, so long as the relevant portions are separable. CPLR 7511 (subd [c]) provides: “The court shall modify the award if * * * 2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted” (see Matter of Amalgamated Watch, Clock & Time Instrument Workers v Jaeger Watch Co., 270 App Div 802). The instant award fits precisely within the scope of the subsection. The matter beyond the arbitrator’s authority may be deleted without affecting the merits of the decision as to whether the discharge was for just and reasonable cause.