Opinion
November 19, 1970
In this proceeding brought pursuant to section 716 (subd. 6, par. [b]) of the Labor Law petitioner, the Roosevelt Hospital, a nonprofitmaking hospital, moves to modify or vacate an award rendered in compulsory arbitration. The award fixed the terms of a collective bargaining agreement between the hospital and the certified representative of its pharmacist employees, Local 1199 of the Drug and Hospital Employees Union. The union, by cross petition, moves for dismissal of the hospital's petition and confirmation of the award of the arbitrator. The award is challenged as having been made in excess of the arbitrator's power (CPLR 7511, subd. [b], par. 1, cl. [iii]). Applying the standards for permissible review, enunciated by the Court of Appeals, we find that the provisions of the award, requiring present pharmacists to join the union within 60 days after the effective date of the agreement, July 1, 1970, and further providing for a duration of the contract for a period of two years from its effective date, not to have been made beyond the ambit of the arbitrator's power. However, we further find, in a proper balance of the interests of all the parties, the arbitrator should have provided that the duration clause would not be deemed a contract bar to a challenge of the union's certification upon the expiration of its extended one-year certification by the State Labor Relations Board, expiring on July 1, 1970. By refusing to provide that the extended contract would not be a bar to any challenge to the union, at the expiration of its board certification, the arbitrator unlawfully arrogated to himself powers belonging to the State Labor Relations Board. (Labor Law, § 702, subd. 7; General Rules and Regulations of the State Labor Relations Board § 19 [ 12 NYCRR 251.26] .) The interest of the public and the rights of the parties were clearly the subject of accommodation by a provision that the duration of the agreement shall not be deemed to curtail the right of the employees to question the union's status after the expiration of its board certification. ( Roosevelt Hosp. v. New York State Labor Relations Bd., 27 N.Y.2d 25; Long Is. Hosp. v. Catherwood, 23 N.Y.2d 20, app. dsmd. 394 U.S. 716.) Accordingly, the petition is granted to the extent only of modifying section 30 of the award, so as to provide that the duration of the agreement shall not be deemed to be a bar to or curtail the right of petitioner's employees to question the union's status as representative of a majority of the pharmacists, following the expiration of the union's certification, as previously established by the order of the New York State Labor Relations Board, dated October 31, 1969; nor may it be regarded as a bar to the board's ordering a new election, if it then finds the union's representative status in doubt. The cross petition is granted only to the extent of confirming the award as modified. In all other respects the petition and cross petition are dismissed, without costs and without disbursements.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez and McNally, JJ.