Petitioner Port Authority Police Benevolent Association commenced a grievance-arbitration proceeding against the respondent Port Authority of New York and New Jersey pursuant to provisions of the parties' July 21, 1991-January 20, 1996 Memorandum of Agreement ("MOA"), alleging that the Authority had violated the terms of the MOA by unilaterally discontinuing a past practice of averaging overtime with respect to probationary police officers.
The MOA provided that a complaint that the Authority had changed a past practice that was not specifically set forth in the MOA was not subject to the grievance-arbitration procedure; that an "arbitrator shall not have the power to add to, subtract from or modify the provisions of the [MOA]"; and that the processing of a complaint by the Authority pursuant to the grievance-arbitration procedure "shall not constitute a waiver by the Authority of any defense or claim that the conduct complained of does not involve the application or interpretation of any provision of the [MOA]". Nonetheless, the arbitrator, determining the dispute concerning the alleged violation of the past practice on the merits, ruled that the past practice of averaging overtime added a term and condition of employment to the MOA; that the Authority had violated that unstated term of the MOA; and that the Authority had waived the defense that the dispute was beyond the scope of the arbitration agreement by participating in the arbitration without raising the defense until a post-hearing memorandum was submitted to the arbitrator.
"Where a collective bargaining agreement contains an express restriction upon the powers of the arbitrator, the limitation will be upheld." ( Matter of City of New York v Davis, 146 AD2d 480, 482.) Since the arbitrator's award clearly exceeded several specific limitations on his powers, as set forth above, it was properly vacated.