In re the Arbitration between Board of Higher Education & Brown , 66 A.D.2d 748 ( 1978 )

Order and judgment (one paper), Supreme Court, New York County, entered May 10, 1977, which denied the petition to vacate an arbitration award and granted the respondent’s cross motion to confirm the award is affirmed, without costs or disbursements. The respondent, a lecturer at Brooklyn College, had been for five years under annual appointments since September 1, 1970. Respondent received a favorable recommendation for reappointment by the college and divisional personnel budget committee and an unfavorable recommendation from the college academic review committee. The president of the college refused to reappoint the respondent. The collective bargaining agreement between the Professional Staff Congress/CUNY and the board of higher education provides in section 9.9 that when the president refuses to make a reappointment over a favorable recommendation of the personnel budget committee he is compelled, upon request, to state his reasons. In a terse letter dated January 17, 1975, the president set forth his reasons for not reappointing respondent as "your qualifications are not as outstanding as those of other individuals whose services are available”. A grievance was instituted and the decision of the arbitrator sustained the respondent and remanded the matter of reappointment to a select faculty committee pursuant to section 20.5 (subd [c]) of the agreement. That section provides that on failure to reappoint "the Arbitrator shall not, in any case, direct that a promotion, appointment or reappointment with or without tenure be made, but upon his finding that there is a likelihood that a fair academic judgment may not be made on remand if normal academic procedures are followed, the Arbitrator shall remand the matter * * * to a select faculty committee”. The arbitrator then goes on in his opinion to say that "If the 'reasons’ requirement in Section 9.9 is to have meaning, Brown was entitled to know where his performance was short of the mark.” "To tell a faculty member that there are others better than he, really does not tell him anything much.” And finally "when one considers that President Kneller required six weeks (as opposed to the 10 school days permitted) to come up with the rather vague reason, against the background of the favorable recommendations of the Committees below, one must conclude that there was an arbitrary application of Board policy on reappointments and the role of personnel and budget committees, the academic review committee and the President of the college in such decisions.” We reject the argument that the arbitrator reviewed the president’s "academic judgment” in defiance of subdivision (b) of section 20.5 of the agreement. By definition "academic judgment” means the judgment of academic authorities as to procedures, criteria and information. The arbitrator did not review the so-called academic judgment of the president, although he did make it clear that the stated criteria and information upon which this vaunted academic judgment was based appeared to be nonexistent. The arbitrator went on to invoke the provisions of section 20.5 (subd [b], cl [in]) and determined,' "that the claimed academic judgment in respect of the * * * reappointment * * * of a particular individual in fact constituted an arbitrary or discriminatory application of the Bylaws or written policies of the Board.” We fail to perceive any injury or prejudice to the petitioner or deviation from the agreement where the arbitrator is clearly given the discretion under subdivision (c) of section 20.5 to refer the matter to a select committee to review the question of "fair academic judgment” especially inasmuch as he himself may not review it per se, and can only find that it was applied arbitrarily. Thus, the arbitrator did not usurp any nondelegable prerogatives of the board and his decision is not contrary to public policy. (Contrast Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266, 271, and Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.) Concur—Evans and Markewich, JJ.; Fein J., concurs in a separate memorandum, and Lupiano and Sullivan, JJ., dissent in a memorandum by Sullivan, J.