The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

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The “continuing jurisdiction” of the arbitrator once afinal determination is made is not automaticNew York State Dept. of Corr. Servs. (New York State Corr.Officers & Police Benevolent Assn., Inc.), 2012 NY Slip Op 07242, AppellateDivision, Third Department
Upon the conclusion of a disciplinary arbitration the arbitrator found theemployee guilty of certain charges and made an “interim award,” imposing apenalty of suspension without pay for 45 days and directing that the employee“otherwise be made whole.”
The final award mirrored the arbitrator's interim award butfurther provided that the arbitrator was "maintain[ing] jurisdiction . . . in theevent that any dispute [arose] between the parties over the implementation of[the] [a]ward."
After the employee returned to work he filed a grievancealleging that the Department of Correctional Services*had not restored all of the back pay, time accruals and other benefits due himas directed by arbitration award.
Ultimately it appears that the employee’s union, the New YorkState Corr. Officers & Police Benevolent Assn. [NYSCOPBA] asked thearbitrator to reopen the arbitration to ascertain whether employee had beenmade whole pursuant to the terms of his award. A hearing date wasscheduled, but the Department, contending that the arbitrator was powerless to,among other things, reopen, modify or explain the prior award, objected.
Notwithstanding the Department’s objection, the arbitratorconducted a hearing in which only NYSCOPBA participated and subsequently awardedthe employee approximately $4,000 in vacation and holiday accruals.
The Department filed a petition pursuant to Article 75 ofthe Civil Practice Law and Rules seeking to vacate the award upon the groundthat the arbitrator exceeded his power in reopening the proceeding. Inrebuttal, NYSCOPBA argued that the Department had waived its right to seekvacatur of the award and cross-moved to confirm the award.
Supreme Court granted the Department’s application, vacatingthe award whereupon NYSCOPBA appealed contending that the Department “waived[its] opportunity to vacate the [challenged] arbitration award by, among otherthings, failing to challenge the arbitrator's assertion of continuingjurisdiction and/or participating in the [challenged] arbitration hearing."
The Appellate Division affirmed the Supreme Court’s ruling,rejecting NYSCOPBA’s argument that the Department had waived any of its rights. The court explained that the Department was “not immediately aggrieved by thearbitrator's purported retention of jurisdiction, the exercise of whichadmittedly was conditioned upon a future … entirely theoretical dispute betweenthe parties as to the subsequent implementation of the award.”
Further, said the Appellate Division, while NYSCOPBA iscorrect that "a party that participates in the arbitration may not laterseek to vacate the award by claiming it never agreed to arbitrate the disputein the first place," here the Department expressly objected to the proposedhearing in writing, and it is undisputed that it did not attend in the hearing.Accordingly, the Appellate Division said that it was satisfied that theDepartment did not "actively participate [in the arbitration]."
As to merits of NYSCOPBA’s appeal, the court said that it iswell settled “that an arbitrator has broad discretion to determine a disputeand fix a remedy, and that any contractual limitation on that discretion mustbe contained, either explicitly or incorporated by reference, in thearbitration clause itself.’
The Appellate Division said that the controlling provisionof the collective bargaining agreement between the parties specificallyprovides that “[d]isciplinary arbitrators shall confine themselves todeterminations of guilt or innocence and the appropriateness of proposedpenalties . . . [and] shall neither add to, subtract from nor modify theprovisions of [the CBA]." Further, said the court, the CBA agreementfurther provides that "[t]he disciplinary arbitrator's decision withrespect to guilt[,] innocence [or] penalty . . . shall be final and bindingupon the parties," which language “evidences a clear agreement by theparties to the CBA to ‘limit the discretion of disciplinary arbitrators.’"
While there may be circumstances where anarbitrator's retention of jurisdiction will be deemed permissible, in this instance theAppellate Division concluded that “such circumstances cannot — in light of therestrictive language of the underlying CBA — be said to exist here.”
Accordingly, court ruled that arbitrator's retention ofjurisdiction in this matter "clearly exceed[ed] a specifically enumeratedlimitation [upon his] power” and the arbitrator's authority over the issuessubmitted to him ended once he rendered his decision.
* The Department of Correctional Services is nowknown as the Department of Corrections and Community Supervision.

The decision is posted on the Internetat:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07242.htm