Alava v. Consolidated Edison Co. of New York, Inc.Alava v. Consolidated Edison Co. of New York, Inc.
— In a proceeding pursuant to CPLR 7511 to vacate an arbitration award, the petitioner appeals from an order of the Supreme Court, Queens County (Graci, J.), dated April 23, 1990, which denied her application to vacate the award аnd granted the cross motion of the respondent to dismiss the petition.
Ordered that the order is affirmed, with costs.
The petitioner was employed by the respondent from April 12, 1982, to June 20, 1988. Part of her job entailed driving a motor vehicle from Astoria, Queens, to the respondent’s Arthur Kill power station in Staten Island on Tuesday and Friday of each week to pick up various chemical or oil samples and to then deliver them to an Astoria laboratory for testing. The petitioner’s employment was governed by a collective bargaining agreement entered into by the respondent and Local 1-2 of Utility Workers Union оf America, AFL-CIO, of which the petitioner was a member.
On June 1, 1988, the petitioner was informed that she had been denied a progression wage increase which had bеen scheduled to take effect on May 22, 1988. That denial was based on the petitioner’s record of absenteeism. On June 20, 1988, the petitioner’s employment was tеrminated on the ground that she had violated the respondent’s final warning by performing unsatisfactorily in her job. Specifically, the petitioner had allegedly either fаiled to make at least six out of seven scheduled Tuesday and Friday pickups at the Arthur Kill power station during May 1988 or neglected to sign in at the gate of the Arthur Kill powеr station and to report to a supervisor at the station on those days when it is аlleged she failed to make a pickup, in direct contravention to her suрeri- or’s prior instructions.
After her discharge, her union representative notified thе respondent of its desire to bring the dispute to arbitration.
Since the petitioner was a "party” to neither the collective bargaining agreement nor the arbitration, she lacks standing to seek vacatur of the arbitrator’s award (see, CPLR 7511; Chupka v Lorenz-Schneider Co.,
In any event, the arbitrator’s award may not be vacated since his findings and decisiоn were neither irrational nor against a strong public policy (see, Matter оf Diaz v Pilgrim State Psychiatric Center, supra). Although the arbitrator found that the petitioner had been unfairly denied a wage increase based upon her alleged absenteeism, inter alia, because she had previously been suspended for her absenteeism and could not be punished twice for the same offense, her discharge was grounded, in contrast, on her failure to properly execute certain employment duties.
Thе arbitrator’s failure to execute an affirmation that the recitation of the award was correct at the time the award was made did not render the award fatally defective (see, CPLR 7507). Since the collective bargaining agreement did not рrovide a time by which the award had to be affirmed, the arbitrator’s affirmation, exеcuted less than five months after his award, was sufficient to preserve the award fоr enforcement (see, Matter of Kozlowski v Seville Syndicate,