The opinion
Sullivan, J. (dissenting).
The judgment should be reversed and the petition to vacate the arbitration award granted. Respondent was a lecturer at Brooklyn College, a unit of city university. After five successive annual appointments, beginning September 1, 1970, he was given timely notice on November 27, 1974, that he would not be reappointed for the 1975-1976 academic year. As a consequence, respondent instituted grievance procedures. Earlier, on September 16, 1974, respondent had been given a favorable recommendation by the college divisional personnel and budget committee (P & B Committee). He had received an unfavorable recommendation from the college academic review committee on September 30, 1974. Under the collective negotiating agreement between the Board of Higher Education in the City of New York and the Professional Staff Congress/CUNY, the refusal of a college president to recommend reappointment after a favorable recommendation by the college P & B Committee permits the affected individual to request the president to furnish a written statement of his reasons: "When a College President determines not to make a recommendation to the Board of Higher Education for reappointment or promotion of a person recommended to him by a College P & B Committee or other appropriate body, the individual affected by that decision shall be notified of the Committee’s favorable recommendation and of the President’s decision. The notice shall not state the reasons for the President’s action. Within 10 school days after receipt of the said notice, the affected individual may submit to the President a request, signed by him, for a statement of the reasons for the President’s action. Within 10 school days after receipt of the request, the President shall furnish a written statement of his reasons to the affected employee. The President shall not be required thereafter to justify his decision or his reasons” (§ 9.9; emphasis added). In response to respondent’s request for the reasons for his nonappointment, the college president wrote to him, in part, as follows: "It was my considered judgment that your qualifications are not as outstanding as those of other individuals whose services are available, and I decided therefore not to recommend your reappointment.” At arbitration, respondent raised several issues, only one of which concerns us here, that is, that the reason given by the president for nonreappointment was "preposterous, vague and arbitrary.” In that regard, at least, the arbitrator agreed, finding that the reason given by the president constituted an arbitrary application of board policy. The arbitrator remanded the matter to a select faculty committee pursuant to a provision of the collective negotiating agreement "in order that a fair academic judgment be made.” The arbitrator stated his reasons as follows: "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. The Board and its separate units certainly should be encouraged in the pursuit of academic excellence, in all of its formulations, but, if staff members are to be required to meet some standard of excellence they are entitled, in the first place, to know what that standard is, and, in the second place, to know where they failed if they are not reappointed. To tell a faculty member that there are others better than he really doesn’t tell him anything much. The stars in *751 the academic firmament are just as elusive as some in the very heavens, although most academics would accept the notion that they are out there somewhere, some shining more brightly than others. But their possible existence, without more positive identification hardly tells Brown why he was not reappointed.” In Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) ( 42 NY2d 509 ), the Court of Appeals set out (p 513) a twofold test for determining arbitrability in the public sector: "whether arbitration claims with respect to the particular subject matter are authorized by the terms of the Taylor Law” and, if so, "whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.” In that connection, the Court of Appeals recognized (pp 512-513, 514) that there is no presumption of arbitrability in a public sector collective agreement as there is in a private sector agreement and that an agreement to arbitrate is not to be based on implication. With that principle as a guide, I am of the view that the collective negotiating agreement excluded from review the president’s reasons for his nonreappointment decision. Section 9.9 of the agreement provides that once reasons are given for a nonreappointment, "The President shall not be required thereafter to justify his decision or his reasons.” Such clause hardly constitutes the "clear, unequivocal agreement to the contrary” in the absence of which it will not be concluded that the board intended "to refer differences which might arise to the arbitration forum.” (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn., supra, p 514.) Furthermore, section 20.5 (subd [b], par [2]) of the agreement defined academic judgment as the judgment of academic authorities as to, inter alia, "whether to recommend or grant appointment, reappointment, promotions and tenure to a particular individual on the basis of such procedures, criteria and information.” It is further provided that "In the arbitration of a grievance of action based in whole or in part upon such academic judgment, the Arbitrator shall not review the merits of the academic judgment or substitute his own judgment therefor”. So, in addition to the stricture against requiring the president to justify his decision not to reappoint, the agreement bans a review of academic judgment. In fact, it is evident that specific policy, as envisioned by the board and the professional staff congress, prevented review of an exercise solely within the discretion of the college president. Clarification of the intent of section 9.9 can be gleaned from a report, dated May 17, 1973, by the fact finder board appointed by the New York State Employment Relations Board on the hearing held on the proposed section: "In our judgment, a President should be required to give his reasons for overruling a favorable recommendation by a College P & B Committee. Such action on the part of a President is not proscribed by the Max-Kahn Report. On the other hand, we do not support the PSC proposal that the President be required to justify his decision." (Emphasis added.) This distinction, duly noted, eventually became incorporated into section 9.9. There is no justification in section 9.9, or in the arguments advanced before its adoption, for the arbitrator’s statement that "If the 'reasons’ requirement of Section 9.9 is to have meaning, Brown was entitled to know where his performance was short of the mark.” All that the president was required to do was to give respondent a reason for his nonreappointment. Having been given the reasons for the president’s decision not to reappoint him, respondent received all the rights to which he was entitled under the agreement. But in any event, I find nothing "preposterous, vague and arbitrary” about the reason given for nonreappointment, i.e., "your qualifications are not as *752 outstanding as those of other individuals whose services are available.” The board’s participation in the arbitration does not estop it from challenging the determination, since an arbitrator’s award may be upset when the arbitrator has "exceeded his power” (CPLR 7511, subd [b], par [iii]). This has been interpreted by the Court of Appeals to mean that a determination will be vacated "where the document expressly limits or is construed to limit the powers of the arbitrators, hence, narrowing the scope of arbitration” (Lentine v Fundaro, 29 NY2d 382, 385 , citing Matter of Granite Worsted Mills [Aaronson Cowen Ltd.], 25 NY2d 451, 456-457 ). There can be no argument that the contract specifically prohibits the arbitrator from reviewing academic judgment. Moreover, since respondent had challenged the timeliness of the reason given by the president to recommend reappointment, and timeliness is an arbitrable issue, the board could not have moved to stay arbitration pursuant to CPLR 7503 (subd [b]). But the issue of timeliness should not be confused with the president’s right not to have to justify his reasons. Accordingly, I would reverse the judgment appealed from, and grant the petition to vacate the arbitrator’s award.