SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

896 

CA 11-00397 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF ASSET PROTECTION & SECURITY 

SERVICES, LP, PETITIONER-RESPONDENT-RESPONDENT,

V MEMORANDUM AND ORDER

SERVICE EMPLOYEES INTERNATIONAL UNION, 

LOCAL 200 UNITED, RESPONDENT-PETITIONER-APPELLANT. 

 

DREW BLANTON, ROCHESTER, FOR RESPONDENT-PETITIONER-APPELLANT. 

ANSPACH MEEKS ELLENBERGER LLP, BUFFALO (STEVEN E. CARR OF COUNSEL),

FOR PETITIONER-RESPONDENT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Genesee County (Robert

C. Noonan, A.J.), entered May 6, 2010 in a proceeding pursuant to CPLR

article 75. The order granted the petition seeking to vacate an

arbitration award and denied the cross petition seeking to confirm the

arbitration award.

It is hereby ORDERED that the order so appealed from is modified 

on the law by denying the petition in part and granting the cross

petition in part and confirming the arbitration award insofar as the

arbitrator found that there was no just cause to terminate petitionerrespondent’s employee and as modified the order is affirmed without

costs.

Memorandum: Respondent-petitioner (hereafter, Union) appeals

from an order granting the petition seeking to vacate an arbitration

award pursuant to CPLR 7511 (b) (1) (iii) and denying the Union’s

cross petition seeking to confirm the award pursuant to CPLR 7510. 

The arbitrator determined that petitioner-respondent, Asset Protection

& Security Services, LP (APSS), did not discharge its employee, the

grievant herein, upon just cause as required by the collective

bargaining agreement (CBA) between the Union and APSS and reinstated

the employee with back pay and benefits. We conclude that Supreme

Court erred in vacating that part of the award determining that APSS

lacked just cause for discharging the employee, and we therefore

modify the order accordingly. We agree with the court, however, that

the arbitrator exceeded his authority by reinstating the employee and

awarding her back pay and benefits, and thus we affirm the order

insofar as the court granted those parts of the petition seeking to

vacate the award to that extent.

APSS contracted with the Bureau of Immigration and Customs
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Enforcement (ICE) to provide custody officers at a federal detention

center in Batavia. APSS and the Union entered into a CBA that

provided, inter alia, that APSS had the right to discharge an employee

“for just cause reasons or at the request of ICE.” ICE provided APSS

with a video tape depicting the employee conversing with a detainee

after lockdown, and APSS thereafter terminated the employee. The

termination notice provided to the employee stated that she was being

discharged based on undue fraternizing with a detainee; allowing a

detainee to be out of place after lockdown; and introducing contraband

into the facility. We note that fraternizing with a detainee and

introducing contraband into the facility are grounds for immediate

discharge pursuant to article 9, section (3) (B) (6) of the CBA. APSS

and the Union stipulated that the arbitrator was to determine whether

APSS had “just cause to terminate the employment of [the grievant] in

accordance with Article 9 of the parties’ collective bargaining

agreement” and that, “[i]f not, what shall the remedy be?” In

rejecting the contention of APSS that it had just cause to terminate

the employee because ICE had barred her from the facility, the

arbitrator determined that APSS was conflating two distinct rights

contemplated by the CBA: termination for just cause and termination

at the request of ICE, which does not require just cause. In

determining that the employee was not terminated for just cause, the

arbitrator credited the employee’s testimony that she was permitted to

allow the detainee out of his “area” after lockdown for purposes of

cleaning within the unit and that, during that time, she was provided

with “intel,” i.e., information regarding the activities of other

detainees. The arbitrator further determined that the employee was

not aware that hand sanitizer that she dispensed in the detainee’s

hand was considered to be a form of contraband and noted that such

hand sanitizer in fact was present in dispensers in the facility. The

arbitrator was unable to determine whether the employee’s security

clearance had been revoked following the termination of her

employment. 

It is axiomatic that “courts are obligated to give deference to

the decision of the arbitrator” (Matter of New York City Tr. Auth. v

Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336;

see Matter of Henneberry v ING Capital Advisors, LLC, 10 NY3d 278,

284, rearg denied 10 NY3d 892). Here, however, the court improperly

substituted its own findings for those of the arbitrator by

determining that the employee was terminated at the request of ICE;

that her security clearance was revoked; and that, because her

security clearance had been revoked, she was not entitled to

participate in the arbitration proceedings pursuant to the terms of

the CBA. The court therefore erred in vacating that portion of the

award determining that the employee was not discharged for just cause.

We agree with APSS that the arbitrator exceeded his authority by

directing that the employee be reinstated and awarding her back pay

and benefits, and we thus conclude that the court properly vacated

those provisions of the award. Despite the fact that the arbitrator

correctly recognized that, pursuant to its contract with ICE, APSS

lacked the authority to reinstate the employee to her position, the

arbitrator nevertheless “restore[d] her employment record and
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compensate[d] her for lost wages and benefits.” “An award may be

vacated on the ground that an arbitrator exceeded his or her power

‘only where the arbitrator’s award violates a strong public policy, is

irrational or clearly exceeds a specifically enumerated limitation on

the arbitrator’s power’ ” (Matter of Communication Workers of Am.,

Local 1170 v Town of Greece, 85 AD3d 1668, 1669, quoting New York City

Tr. Auth., 6 NY3d at 336; see Matter of Buffalo Teachers Fedn., Inc. v

Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503,

1505, lv denied 11 NY3d 708). Here, although the arbitrator found

that the employee was not terminated for just cause, he was

nevertheless without authority under the terms of the CBA to direct

APSS to reinstate her or to compensate her with back pay and benefits. 

The CBA expressly provides that an employee who is on unpaid

administrative leave or is suspended during an investigation mandated

by ICE for an employee action is not eligible for back pay and

benefits even in the event that the employee’s security clearance is

reinstated and the individual returns to work. If, however, an

employee is on unpaid administrative leave or is suspended for a

reason “not related to an ICE order to place the employee on

administrative leave or suspension,” the employee is entitled to back

pay and benefits. Notably, the CBA further provides that “[t]he

Arbitrator shall have no power to add to, subtract from, or modify the

provisions of this agreement in arriving at a decision of the issue

presented and shall confine his or her decision solely to the

application and interpretation of this Agreement.”

Here, the employee was terminated based upon the actions observed

on the video tape provided to APSS by ICE, and we thus conclude that,

pursuant to the express terms of the CBA, the employee is not entitled

to back pay and benefits and would not be so entitled even if APSS had

the authority to reinstate her to her position. We therefore conclude

that the arbitrator exceeded his authority by “add[ing] to” the CBA

and awarding the employee a remedy that is not permitted. 

All concur except CARNI and MARTOCHE, JJ., who dissent in part and

vote to reverse in accordance with the following Memorandum: We agree

with our colleagues that Supreme Court erred in vacating that part of

the award determining that petitioner-respondent, Asset Protection &

Security Services, LP (APSS), lacked just cause for discharging the

employee in question. However, we respectfully disagree with the

conclusion of our colleagues that the arbitrator exceeded his

authority under the collective bargaining agreement (CBA) in directing

the reinstatement of the employee discharged without just cause and in

awarding her back pay and benefits. Therefore, we dissent in part and

would vote to reverse the order, thus denying the petition in its

entirety and granting the cross petition in its entirety.

The majority’s conclusion that the arbitrator exceeded his

authority with respect to the remedy has, as its foundation, the

proposition that the employee’s discharge was the result of a request

by the Bureau of Immigration and Customs Enforcement (ICE) or an

investigation mandated by ICE that resulted in revocation of the

employee’s security clearance. The majority avoids expressly

acknowledging that basis for its conclusion by characterizing the
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CA 11-00397

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employee’s termination as being based upon “the actions observed on

the video tape provided to APSS by ICE.” However, the majority

simultaneously concludes that the court erred when it “improperly

substituted its own findings for those of the arbitrator by

determining that the employee was terminated at the request of ICE.” 

We respectfully submit that those conclusions are logically

inconsistent. In any event, the record does not contain any evidence

that the employee was terminated as the result of any action by ICE

provided for within the terms and conditions of the CBA.

The majority concludes that “[t]he arbitrator was unable to

determine whether the employee’s security clearance had been revoked

following the termination of her employment.” Rather than place the

focus on what the arbitrator did not determine, we submit that the

proper approach is to focus on what the arbitrator correctly

determined, i.e., that APSS failed to establish at the arbitration

hearing that the employee’s security clearance had been revoked. 

Specifically, on the first day of the arbitration hearing, APSS

admitted that the employee’s security clearance had not been revoked. 

On the second day of the hearing, more than seven months later, APSS

attempted to introduce a copy of an e-mail string dated September 15,

2009, purporting to establish the revocation of the employee’s

security clearance. APSS terminated the employee on February 13, 2009

— seven months before the creation of the e-mails. The arbitrator

correctly concluded that the e-mails were inadmissible hearsay and

they were not received in evidence. Indeed, they are not contained in

the record before us. Further, the employee testified on the second

day of the hearing that she had not been notified of any revocation of

her security clearance and that, as far as she knew, it was still in

effect. Thus, the record contains no evidence that ICE requested the

employee’s termination, mandated an investigation or issued any form

of order with respect to the employee’s security clearance. 

The majority further recognizes that the issue framed by the

parties at the arbitration did not include whether the employee was

terminated “at the request of ICE.” In addition, evidence that there

was no revocation of the employee’s security clearance or request by

ICE to terminate the employee is reflected in the procedural course

followed by the parties pursuant to the CBA. Article 9, section (1)

(B) of the CBA provides that “any employee whose [security] clearance

is revoked by ICE may not grieve disciplinary action beyond Step 3 of

the Grievance Process.” Article 8 of the CBA, entitled “Grievance

Procedure,” contains five steps in the grievance process. 

Arbitration, which occurred here, is Step 5 of the procedure. The

parties here proceeded well beyond Step 3 of the grievance procedure. 

If in fact the employee’s security clearance had been revoked by ICE,

the employee would have had no right to proceed to arbitration. APSS

could have invoked article 9, section (1) (B) to prevent the grievance

procedure from proceeding to arbitration. APSS never raised article

9, section (1) (B) as a ground for staying the arbitration, however,

and willingly participated in the arbitration. In our view, such

conduct by APSS is a clear concession that the employee was not

terminated at the request of ICE. Further, article 9, section (1) (D)

provides that, if an employee is placed on “unpaid administrative
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CA 11-00397

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leave or [is suspended] for a reason not related to an ICE order to

place the employee on administrative leave or suspension, that

employee retains his/her rights under all phases of the grievance

procedure and may be entitled to lost pay and benefits should [APSS]

so agree or should an arbitrator so decide” (emphasis added). APSS

proceeded to arbitration — a process which included “all phases of the

grievance procedure.” Thus, if our choice in deciding the

availability of the remedy awarded by the arbitrator is the choice

between article 9, section (1) (C) or (D), the grievance procedural

course in which APSS willingly participated unequivocally establishes

that the employee was not terminated because her security clearance

was revoked or otherwise by or at the request of ICE — and eliminates

subdivision (1) (C) as a basis for denying the employee the

arbitrator’s remedy of back pay, benefits and reinstatement.

Nonetheless, the majority concludes, in reliance upon article 9,

section (1) (C), that the employee’s termination must have been 

“ ‘related to an ICE order to place [her] on administrative leave or

suspension’ ” and that she therefore is not entitled to back pay and

benefits. We further note that the employee was not “suspended” or

placed on “unpaid administrative leave” and thus article 9, section

(1) (C) by its express terms does not provide a basis upon which to

conclude that the employee is not entitled to back pay and benefits. 

That provision simply does not include or apply to the disciplinary

action taken here — termination. The employee was terminated, as the

majority correctly concludes, without “just cause.” Moreover, the

record before us does not contain any evidence of what the majority

refers to as an “ICE order” or an “investigation mandated by ICE,” in

accordance with the terms of the CBA. Instead, the majority

incorrectly equates the fact that ICE merely provided a video tape to

APSS that depicted the employee’s actions with proof of the revocation

of the employee’s security clearance, as an “ICE order” or an

“investigation mandated by ICE” as required by the CBA. 

The CBA neither precludes nor specifically provides for back pay

and benefits as a remedy in the event of the unjust or wrongful

termination of an employee, which is the case here. However, article

8, section (6) provides that “[a]ny grievance resolutions that carry a

back-pay award will be paid within one (1) pay period following

resolution.” Further, article 9, section (1) (D) specifically

provides for “lost pay and benefits . . . should an arbitrator so

decide” when an employee is placed on unpaid administrative leave or

suspension unrelated to an ICE order. Thus, the CBA expressly

contemplates the award of back pay and benefits following a grievance

that leads to an arbitration award of back pay. We cannot accept the

proposition that an employee who receives the lesser penalty of a

wrongful suspension or unpaid administrative leave can receive back

pay and benefits, while an employee subjected to the harsher penalty

of a wrongful termination has no such remedies available under the

CBA.

Turning to the arbitrator’s remedy of reinstatement, “in the

arbitration of labor grievances, it is well settled that, unless

limited by the plain terms of the submission, the arbitrator is
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empowered to grant any relief reasonably fitting and necessary to the

final determination of the matter submitted to him [or her]; and this

includes the granting of equitable relief for the direction of the

reinstatement, hiring, or classification of a particular employee in a

particular position” (Matter of British Overseas Airways Corp. v

International Assn. of Machinists & Aerospace Workers, AFL-CIO, 39

AD2d 900, 901 [dissenting mem], revd on dissenting mem 32 NY2d 823

[upholding confirmation of reinstatement remedy based upon dissenting

mem]). “[U]nless constrained by the arbitration agreement, an

arbitrator might well determine that wrongful discharge of an employee

is not fully compensable solely in dollars and cents, and,

accordingly, an award which couples payment of lost wages with a

prospective order of reinstatement is not to be disturbed on that

ground alone” (North Syracuse Cent. School Dist. v North Syracuse

Educ. Assn., 45 NY2d 195, 201-202). We respectfully disagree with the

majority’s conclusion that the arbitrator recognized that “APSS lacked

the authority to reinstate the employee to her position.” Instead,

after summarizing and rejecting APSS’s claim that ICE had revoked the

employee’s security clearance, the arbitrator stated, “Although [APSS]

may not be able to return [the employee] to her duties . . . at [her

place of employment] under its contract with ICE, the remedy . . .

will restore her employment record and compensate her for lost wages

and benefits.” In our view, that statement reflects the arbitrator’s

recognition of APSS’s argument that the revocation of the employee’s

security clearance prevented her reinstatement — while simultaneously

rejecting it based upon the evidence adduced at the hearing. We

further reject APSS’s contention that the employee has been barred

from her place of employment. APSS failed to submit any admissible

evidence at the arbitration hearing to establish that she was barred,

and the record is otherwise devoid of any such evidentiary support. 

There is also nothing in the CBA that limited the arbitrator from

awarding reinstatement as a remedy for the employee’s termination

without just cause. The majority’s conclusion that reinstatement is

not available under the CBA makes the contractual right of termination

only upon just cause a hollow one — a result, in our view, clearly not

intended by the parties to the CBA by the inclusion of the “just

cause” requirement. 

Entered: December 23, 2011 Frances E. Cafarell
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CA 11-00397

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Clerk of the Court