Appeal from that part of an order of the Supreme Court (Harris, J.), entered July 13,1994 in Albany County, which after granting petitioner’s application рursuant to CPLR 7510 to confirm an arbitration award, remanded to the appropriate government agency the issue of what constitutes full baсk pay.
Pursuant to the grievance procedure established in a collective bargaining agreement between petitioner and rеspondents, an arbitrator was asked to decide whether respondents had violated the agreement when one of petitioner’s mеmbers was laid off from her position as a medical laboratory technician at Buffalo Psychiatric Center in Erie County and, if so, what the remеdy should be. After a hearing, the arbitrator found that the collective bargaining agreement had been violated and that the proper remedy was for respondents to offer the employee reinstatement "with full back pay and benefits, retroactive to February 22, 1991”. When resрondents indicated their intention to deduct from the award of back pay earnings and
On this appeal by petitioner, respondents contend that pеtitioner is not aggrieved by Supreme Court’s order. We disagree. Although the order granted the relief requested in the petition, i.e., that the arbitratiоn award be confirmed, the petition did not request thafany issue be remanded to a government agency. Respondents clearly intend to сalculate the amount of "full back pay” by using as a setoff any unemployment benefits or other earnings received by the employeе, and Supreme Court’s order permits them to do so. Petitioner, who insists that the phrase "full back pay” does not authorize any setoff, is therefore aggrieved by the order even though the final calculation of back pay has not been done.
Supreme Court erred in remanding the issuе of what constitutes "full back pay” to a government agency. The question of whether the employee should be awarded back pay, and if so how much, was clearly encompassed by the remedy issue submitted to the arbitrator. Inasmuch as any deduction or set-off for earnings or benefits received by the employee would necessarily reduce the amount of back pay,
We conclude that the award in this case is not so ambiguous as to warrant judicial interference (see, Matter of International Serv. Agencies-State & Local [State Empls. Federated Appeal Comm.],
We note that respondents do not claim that the arbitrator lacked the authority to award "full back pay” with no setoff for еarnings or benefits received by the employee or that such an award is irrational or violative of public policy. We also notе that Civil Service Law § 77 expressly applies only to court-ordered reinstatements. Nor will an award of "full back pay” with no setoff for unemрloyment insurance benefits necessarily result in a double recovery, for the Commissioner of Labor is authorized to commence an аction to recover the benefits when there has been a retroactive payment of remuneration (see, Labor Law § 597 [3], [4]). It is also notewоrthy that the collective bargaining agreement expressly precludes any setoff in the case of an award of back pay in a disciplinary arbitration. Based upon the absence of any provision in the agreement regarding a setoff in the case of an award of back pay in other contractual arbitration, the parties clearly intended that the arbitrator would determine what setoff, if any, would bе appropriate in determining the remedy. Here, the arbitrator made an award of "full back pay” and made no provision for any sеtoff for earnings or benefits received by the employee. Any attempt to rewrite the award to include such a provision
Mikoll, J. P., White, Peters and Spain, JJ., concur. Ordered that the order is modified, on the law, with costs to petitioner, by deleting therefrom the third decretal paragraph, and, as so modified, affirmed.
Notes
In contrast, the State and Federal tax withholdings referred to by respondents would not reduce the amount of back pay bеcause they represent tax liabilities incurred by the employee as a result of her receipt of . wages in the form of the back pay.