Matter of City of New York v District Council 37 AFSCME

Matter of City of New York v District Council 37 AFSCME 2010 NY Slip Op 05671 [74 AD3d 676] June 24, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

In the Matter of City of New York et al., Appellants,
v
District Council 37 AFSCME et al., Respondents.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for appellants.

Mary J. O'Connell, New York (Dena Klein of counsel), for respondents.

Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 20, 2009, confirming an arbitration award which, insofar as challenged, directed petitioners (the City) to pay certain grievants employed as public health advisors (PHAs) by the New York City Department of Health and Mental Hygiene $1,800 for each year since the filing of the grievance, denied the City's application to vacate the arbitration award, and dismissed the petition, unanimously affirmed, without costs.

The City argues that any monetary remedy for out-of-title work must be the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some "new term" of compensation "created" by the arbitrator in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated. Whatever arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles. Surely, given such circumstance, an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order. Absent a plain and express contractual limitation to the contrary in the collective bargaining agreement, the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief (see Civil Service Law § 100 [1] [d]; County of Rockland v Rockland County Unit of Rockland County Local of Civ. Serv. Empls. Assn., 74 AD2d 812 [1980], affd 53 NY2d 741 [1981]; Matter of North Colonie Cent. School Dist. [North Colonie Teachers' Assn.], 60 AD2d 496, 498 [1978], affd 46 NY2d 965 [1979]). Concur—Saxe, J.P., Friedman, Nardelli, Moskowitz and Richter, JJ.