A common feature of grievance arbitrations is that, after issuing an award, an arbitrator will retain jurisdiction over the case to resolve disputes about the remedy. What is not always appreciated, however, is that depending upon how the underlying collective bargaining agreement is written, an arbitrator may have no inherent right to retain jurisdiction, but rather can only do so if the parties agree to it.
A case recently decided by New York’s Appellate Division court illustrates this principle. In December 2007, the New York Department of Correctional Services terminated Charles Hannigan, a correction sergeant then working at Attica Correctional Facility in Wyoming County. The Department alleged that Hannigan failed to report the use of force upon an inmate, failed to have the inmate evaluated by the facility’s medical staff and thereafter made false and/or misleading statements to his superiors regarding the incident.
Hannigan’s labor organization, the Police Benevolent Association (PBA), challenged the discipline in arbitration. Following multiple hearings, an arbitrator issued an interim award in September 2008 finding Hannigan guilty of the charges, imposing a 45-day suspension and directing that Hannigan “otherwise be made whole.” The final award issued in December 2008 mirrored the Arbitrator’s prior decision but further provided that he was “maintaining jurisdiction…in the event that any dispute arose between the parties over the implementation of the award.”
Following his return to work, Hannigan filed a grievance alleging that the Department had failed to restore all of the back pay, time accruals and other benefits owing pursuant to the Arbitrator’s decision. The Department refused to process the grievance to arbitration, taking the position that the claimed violation of the arbitration award was not arbitrable.
The PBA asked the Arbitrator to reopen the arbitration to determine whether Hannigan indeed had been made whole pursuant to the terms of the prior award. A hearing date was scheduled, but the Department objected to it, contending that the Arbitrator was powerless to reopen, modify or explain the prior award. The Arbitrator nonetheless conducted a hearing in February 2010, in which only the PBA participated, and, in August 2010, awarded Hannigan approximately $4,000 in vacation and holiday accruals.
The Department then challenged the Arbitrator’s second decision. The Court agreed with the challenge, finding that the Arbitrator had no power to retain jurisdiction over the case.
The Court noted that it was “well-settled that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself. Here, the CBA expressly provides that ‘disciplinary arbitrators shall confine themselves to determinations of guilt or innocence and the appropriateness of proposed penalties and shall neither add to, subtract from nor modify the provisions of the CBA.’
“The foregoing provision evidences a clear agreement by the parties to the CBA to limit the discretion of disciplinary arbitrators. Thus, while there indeed may be circumstances under which an arbitrator’s retention of jurisdiction will be deemed permissible, such circumstances cannot – in light of the restrictive language of the underlying CBA – be said to exist here. Accordingly, the Arbitrator’s retention of jurisdiction in this matter clearly exceeded a specifically enumerated limitation upon his power. Absent evidence of a contrary agreement between the parties, the Arbitrator’s authority over the issues submitted to him ended once he rendered his decision.”
New York State Dept. of Correctional Services v. New York State Correctional Officers and Police Benevolent Ass’n, Inc., 2012 WL 5356707 (N.Y. A.D. 3 Dept. 2012).