Petitioner seeks a judgment from the Court (i) declaring the Arbitrator's Opinion and Award, dated January 25, 2006, terminating petitioner's employment as a correction officer with the New York State Department of Correctional Services ("DOCS") vacated; and (ii) directing that the charges in the Notice of Discipline ("NOD") dated October 13, 2004 be dismissed or remanded for [*2]a new hearing before a different arbitrator. Respondent answers and seeks dismissal of such action.

Facts

Petitioner Barbara Kowaleski (hereinafter petitioner) was terminated from her employment as a correction officer based upon a finding of guilt on two charges raised in an October 13, 2004 NOD. Petitioner has been employed by DOCS since 1981 and worked at the Hale Creek Correctional Facility at the time of the instant charges. Pursuant to the parties' collective bargaining agreement ("CBA"), a hearing was held on petitioner's disciplinary charges and the Arbitrator found petitioner guilty of two of the three charges raised in the NOD and found that termination was the appropriate penalty. The two charges petitioner was found guilty of involved allegations of (i) inappropriate comments of a personal nature about another staff member allegedly made in the presence of staff and inmates on September 29, 2004; and, (ii) an incident of insubordination and disrespect to a superior on October 4, 2004.

Petitioner alleges that the charges against her are baseless and were brought against her in retaliation for her actions in reporting an alleged incident of inmate abuse in September 2002. Although petitioner raised Civil Service Law §75-b ^[FN1] as an affirmative defense to such charges, the Arbitrator refused to consider such affirmative defense on the basis that he did not have the authority to consider such defense but instead was bound by the terms of the disciplinary provisions of the CBA, which provides in Article 8.2(h), that "[d]isciplinary arbitrators shall confine themselves to [*3]determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances." The Arbitrator did state at the hearing, however, that he would consider petitioner's evidence of harassment and retaliation in the context of rendering a decision as to petitioner's guilt or innocence as the Arbitrator stated that "the issue of animus, however, is relevant to the credibility issue."

After hearing the evidence presented at the hearing, the Arbitrator found petitioner guilty of two of the three charges raised and determined that termination was the appropriate penalty. The Arbitrator stated in his decision that grievant had a history of rank insubordination and relied in part upon another arbitration decision, rendered two months prior on August 21, 2006 by a separate arbitrator, concerning the petitioner and alleged incidents of misconduct that had occurred in 2003.^[FN2] The Arbitrator noted that refusals to obey orders are serious offenses and as "[g]rievant had run the string' of progressive discipline" the proposed penalty of termination was appropriate.

Petitioner asserts that the award should be vacated on the grounds that (i) the Arbitrator exceeded his power because the Arbitrator ignored (a) a specific limitation on his authority to protect public employees from retaliation contained in Civil Service Law 75-b and (b) strong public policy to protect public employees from retaliation and, (ii) the Arbitrator's determinations with respect to charges 1 and 3, and his determination that petitioner had "run the string" of progressive discipline, are each totally irrational as there is no proof to justify the findings, the findings are not supported by evidence or other basis in reason on the record, and are arbitrary and capricious.

Respondent opposes such motion, arguing that the express language of the CBA did not allow the Arbitrator to make a determination under Civil Service Law §75-b(3) as Article 8.1 of the CBA provides that "[d]iscipline shall be imposed upon employees otherwise subject to the provisions of Section 75 and 76 of the Civil Service Law only pursuant to this Article...". Respondent additionally argues that the Arbitrator did not completely ignore the defense presented by petitioner and in fact, did consider such evidence, and that even where an arbitrator has erred in applying the law, such award should not be vacated and the Court should not substitute its own judgment for that of the Arbitrator's. Finally, as to petitioner's arguments that the award is irrational, respondent argues that the Court is obligated to give deference to the Arbitrator's decision and as there is colorable justification for the outcome reached by the Arbitrator, the petitioner is not entitled to the relief she seeks.

Standard of Review

Judicial review of arbitration awards is extremely limited. The Court of Appeals has stated:

"Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management. In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator [*4]simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice (see, Matter of Sprinzen [Nomberg], 46 NY2d 623, 629-631; see also, United Paperworkers Intl. Union v Misco, Inc., 484 U.S. 29, 38; International Bhd. of Elec. Workers v Niagara Mohawk Power Corp., 2nd Cir., 143 F.3d 704, 714).

Despite this deference, courts may vacate arbitral awards in some limited circumstances. A court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power under CPLR 7511(b)(1) (Matter of Board of Educ. v Arlington Teachers Assn., 78 NY2d 33, 37)." (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326, [1999]).

Allegations of Exceeded Power

Petitioner argues that the Arbitrator exceeded his power "because the Arbitrator ignored a specific limitation on his authority contained in Civil Service Law 75-b to protect public employees from retaliation." Where a party argues that the arbitrator exceeded his power, such limitation "must be set forth as part of the arbitration clause itself" (Matter of Silverman v. Benmor Coats, 61 NY2d 299 [1984]. An arbitrator exceeds his authority by deciding matters not submitted to him or by awarding more relief than what was sought (see Matter of Karadhimas v. Allstate Ins. Co., 9 AD3d 429, 430-431 [2nd Dept., 2004]; Banc of Am. Sec., v. Knight, 4 Misc 3d 756, 758 [2004]). Petitioner has made no argument that the Arbitrator has exceeded his authority under the terms of the CBA nor has petitioner asserted that the Arbitrator exceeded his authority by deciding matters not submitted to him or by awarding more relief than what was sought. Instead, petitioner essentially argues that the arbitrator exceeded his authority by disregarding applicable law by failing to consider the Civil Service Law §75-b defense raised by petitioner (see Obot v. New York State Department of Correctional Services, 89 NY2d 883 [1996].

Respondent argues that the express language of the CBA precludes consideration of the retaliation provisions of Section 75-b by the arbitrator. Respondent asserts that the language of the CBA which provides that "[d]iscipline shall be imposed upon employees otherwise subject to the provisions of Sections 75 and 76 of the Civil Service Law only pursuant to this Article, and the procedure and remedies herein provided shall apply in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law which shall not apply to employees" also applies to Section 75-b of the Civil Service Law. While the provisions of the CBA specifically apply their own procedures in lieu of Civil Service Law §§ 75 and 76, entitled "Removal and other Disciplinary Action" and "Appeals from Determinations in Disciplinary Proceedings" respectively, the CBA makes no specific reference to Section 75-b nor does it provide that such procedures should not apply.

Respondent further argues that the Section 8.2(h) in the CBA which provides that "[d]isciplinary arbitrators shall confine themselves to determinations of guilt or innocence and can neither add to, subtract from nor modify the provisions of this Agreement" precludes the Arbitrator from considering an affirmative defense of retaliation. By accepting respondent's argument that the provisions of the CBA preclude the determinations required under Civil Service Law §75-b, effectively the protections afforded to an employee against retaliation are rendered meaningless as [*5]such protections could simply be negotiated away by contracting parties.^[FN3]

Yet, it is well settled in New York that "... an arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice" (Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471, 479-480 [2006]. The Arbitrator interpreted the terms of the CBA as limiting his decision to a finding of guilt or innocence and noted that he could not alter, add to or detract from the provisions of the agreement and therefore was unable to consider petitioner's affirmative defense of retaliation. "The applicable principle is that an arbitrator's award will not be vacated even though the court concludes that his interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation'" (Matter of Albany County Sheriff's Local 775 [County of Albany], 63 NY2d 654, 655 [1984]). Therefore, as an arbitrator's award should not be vacated for errors of law, petitioner's claim on this ground is without merit.Public Policy

Petitioner also claims that the award should be vacated on the grounds that the Arbitrator exceeded his power because the Arbitrator ignored the strong public policy to protect public employees from retaliation.

An arbitrator's award will not be vacated on public policy grounds unless such violation of public policy is apparent on the face of the award. "Stated another way, courts must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement" (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Such intervention applies only in "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." (Matter of Sprinzen [Nomberg], supra at 631).

It is clear from the language of Civil Service Law §75-b, that such provision does not prohibit arbitration of the particular matters to be decided in this case as Civil Service Law §75-b expressly provides that the affirmative defense of retaliation should be determined by the arbitrator. Therefore, the first prong of the test is not satisfied.

Nor does the case qualify for judicial intervention under the second prong of the public policy exception as, without engaging in any extended factfinding or legal analysis, Civil Service Law §75-b does not prohibit the relief of termination of an employee from being granted.

Civil Service Law §75-b precludes the dismissal of an individual where such disciplinary action is taken solely in retaliation for such individual's disclosure to a governmental body information "(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably [*6]believes to be true and reasonably believes constitutes an improper governmental action" (See Civil Service Law §75-b(2)). Where there is a "separate and independent basis for the action taken, a defense under Civil Service Law §75-b cannot be sustained" (Crossman-Battisti v. Traficanti, 235 AD2d 566 [3rd Dept., 1997]).

While the Arbitrator was clearly incorrect in regard to his ability to consider a defense of retaliation by petitioner under Civil Service Law §75-b, the Arbitrator considered petitioner's claims of harassment and allowed petitioner to present evidence with respect to such claims. The Arbitrator stated in his opinion that the issue of animus was relevant to the issue of witness credibility and stated during the hearing that he would consider the evidence of harassment proffered by the petitioner "in the context of guilt or innocence, because if it's an affirmative defense, you know, then there will be an acquittal...". As Civil Service Law §75-b does not preclude an award of termination where an "employer presents evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken", and in this case, after hearing the evidence presented, the Arbitrator determined that the witnesses were credible and that petitioner was guilty of the charges of misconduct brought against her, the Court does not find that the award directly violates any strong public policy. (Crossman-Battisti v. Traficanti, 235 AD2d 566 [3rd Dept., 1997]).

Rationality

Petitioner also claims that the Arbitrator's award should be vacated on the grounds that the Arbitrator's determinations of guilt with respect to charges 1 and 3 in the NOD are totally irrational as there is no proof to justify the findings, the findings are not supported by evidence or other basis in reason on the record, and are arbitrary and capricious. Such a finding would require that "there is no proof whatever to justify the award" (Peckerman v. D & D Associates, 165 AD2d 289, 296 [1st Dept., 1991]. As stated above, "[a] court cannot examine the merits of an arbitration award and substitute its judgment for that of the Arbitrator simply because it believes its interpretation would be the better one." (New York State Correctional Officers & Police Benevolent Ass'n v. State, supra at 326 [1999]). The Arbitrator was specifically authorized pursuant to the terms of the CBA to make a determination of guilt or innocence and the CBA provides in Section 8.2(h) that "[t]he disciplinary arbitrator's decision with respect to guilt or innocence, penalty, or probable cause for suspension ... shall be final and binding upon the parties, and the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances...".

With respect to charge 1, petitioner was charged with making an inappropriate comment of a personal nature about another staff member in the presence of staff and inmates. The Arbitrator determined that petitioner did make a comment in front of inmates concerning a member of a fellow correctional officer's family and that such comment should not have been made as personal information concerning correctional employees could be used by inmates to compromise the performance of such officer and endanger the lives of their families. The record reflects that while petitioner denies having made such statement, another officer testified that such statement was made. The arbitrator's decision, at best, comes down to an issue of determining credibility.

With respect to charge 3, petitioner was charged with being insubordinate to a superior during the course of a disagreement she was having with another co-worker in the presence of the superior in which the superior allegedly ordered petitioner several times to stop interrupting the other employee. Petitioner argues, inter alia, that her superior never gave her an "order" to remain silent [*7]during the conversation, that as the conversation occurred prior to the time the petitioner was on duty, such statement was not officially an "order," that the superior was required under the Employee Manual to give a "lawful order," and that as the superior stated on the record that he had not given an "order" the Arbitrator's award should be vacated. Respondent asserts that the superior testified that petitioner did not obey his order to stop interrupting and that the Arbitrator determined that the credible evidence presented at the hearing established that the grievant was in the wrong. The Arbitrator determined that the superior did not have to use "the magic word order'" in order for his direction to petitioner to be considered an order. Again, with respect to the alleged charges against the petitioner and the claims raised by the petitioner, such charges and claims at best presented issues for determination by the Arbitrator as such issues involved determinations concerning the credibility of witnesses and proper inferences to be drawn from the facts and circumstances presented. Upon hearing the evidence presented, such issues were resolved by the Arbitrator in favor of the respondent.

The Arbitrator specifically based his findings of guilt with respect to charges 1 and 3 on petitioner's testimony as well as the contrary testimony of other witnesses. As such, the Arbitrator's award cannot be said to be totally irrational and the Court finds no basis to vacate such award.

Finally, petitioner claims that the award must be vacated as the finding made by the Arbitrator that petitioner had "run the string" of progressive discipline was totally irrational, without proof to justify the finding, not supported by evidence or other basis in reason on the record, and is arbitrary and capricious.

Petitioner contends that as the Arbitration Award of Arbitrator Prosper, which suspended petitioner for 6 months, on August 21, 2006 was determined years after the incidents forming the basis for the charges giving rise to the instant action occurred, the petitioner was not given the benefit of progressive discipline (as she had not yet been so disciplined at the time of these incidents) and as such, his determination concerning the appropriateness of the penalty on the basis that petitioner was given the benefit of progressive discipline is incorrect and irrational.

While the Arbitrator did consider that petitioner had received two prior NODs which had been the subject of an Opinion and Award issued by Arbitrator Prosper the Court does not find that the Arbitrator's consideration of petitioner's receipt of other NODs and the Award and Opinion of Arbitrator Prosper, in addition to the other evidence introduced at the hearing in determining the appropriate penalty, to have resulted in a wholly irrational award. While the Arbitrator notes that the grievant had "run the string of progressive discipline," he also noted that "grievant has a history of rank insubordination," that Arbitrator Prosper had found her guilty of repeated refusals to obey orders and that those were serious offenses particularly in the context of a prison. Additionally, the CBA provided in Section 8.6, in part, that "[t]he employee's whole record of employment, however, may be considered with respect to the appropriateness of the penalty to be imposed, if any." As such, the Arbitrator was permitted to consider petitioner's record of employment though he was not required to consider the concept of "progressive discipline" in determining whether the penalty of termination was appropriate and accordingly, such statement by the Arbitrator concerning "progressive discipline" does not render such award totally irrational.

Petitioner's Motion to Amend

After the parties' papers had been submitted to the Court, petitioner filed a notice of motion to amend her petition on September 18, 2007 and set a return date of October 26, 2007 for the [*8]motion. Petitioner has requested permission to amend her petition to allege an additional cause of action that the Arbitrator's Opinion and Award be vacated pursuant to CPLR 7511(b)(1)(i) on the grounds of corruption, fraud or misconduct in procuring the award. Respondent opposes such motion on the grounds that petitioner's proposed amendment presents a futile and meritless argument.

While the Court notes that leave to amend is generally freely given, such leave is within the "sound discretion of the trial court and an amendment need not be granted where the proposed amendment clearly lacks merit" (Vollbrecht v. Jacobson, 40 AD3d 1243 [3rd Dept., 2007]. CPLR 7511(b)(1)(i) provides that an award shall be vacated "if the court finds that the rights of that party were prejudiced by: (i) corruption, fraud or misconduct in procuring the award;...". Petitioner has the burden of establishing by clear and convincing evidence the existence of impropriety or misconduct that prejudiced her rights or the integrity of the arbitration process (see Matter of Mounier v. American Tr. Ins. Co., 36 AD3d 617 [2nd Dept., 2007]; Matter of Hausknecht v Comprehensive Medical Care of New York, P.C., 24 AD3d 778 [2nd Dept., 2005]). Petitioner has failed to allege facts which demonstrate that impropriety existed that prejudiced her rights or the integrity of the arbitration process.

As discussed below, petitioner was charged with, inter alia, making an inappropriate comment of a personal nature about another staff member in the presence of staff and inmates. The record reflects that while petitioner denies having made such statement, another officer ("Officer A") testified that such statement was made. As part of Officer A's disciplinary hearing testimony, he stated that he was approximately 10 - 12 feet away from petitioner when she allegedly made such statement as that was the distance from the door of the "dayroom" to the officer's desk. The statement was allegedly made by petitioner while she was seated at the officer's desk and Officer A was exiting the door to the dayroom. Petitioner asserts that the distance between the door to the "dayroom" and the officer's desk is a key issue because if they were close, no inmates could have heard the alleged statement. Petitioner now seeks to introduce evidence that another officer ("Officer B"), in a separate proceeding, testified that the distance from the door of the "day room" to the officer's desk is only 5 feet, rather that 10-12 feet or five to seven steps as Officer A testified at petitioner's disciplinary hearing. Petitioner argues that this new testimony proves that Officer A purposely lied before the arbitrator and that there was a corrupt and fraudulent agreement between Officer A and Officer B to lie about the incident. The only evidence in support of such claim, however, is that the testimony of Officer A and Officer B were disparate concerning the approximate distance between the "dayroom" door and the desk. Petitioner has failed to allege facts which demonstrate that impropriety existed that prejudiced her rights or the integrity of the arbitration process and as such, petitioner's motion to amend her petition is hereby denied.

With respect to the petition, petitioner's remaining contentions have been considered and are found to be without merit. Therefore, after a full review of the record, petitioner's request for relief as set forth in the petition is in all respects denied.

SO ORDERED AND ADJUDGED.

This shall constitute both the decision and judgment of the Court. All papers, including this decision and order are being returned to the attorney for the respondent. The signing of this decision and judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the [*9]applicable provisions of that section relating to filing, entry and notice of entry.

SO ORDERED.

ENTER.

Dated: November 12, 2007

Albany, New York

_______________________________

Gerald W. Connolly

Acting Justice of the Supreme Court