Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State Dept. of Envtl. Conservation

[*1] Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State Dept. of Envtl. Conservation 2006 NY Slip Op 52083(U) [13 Misc 3d 1232(A)] Decided on October 31, 2006 Supreme Court, Albany County Ceresia Jr., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2006
Supreme Court, Albany County

Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and ANTHONY VIGNOLA, Petitioners, For A Judgment Pursuant to Article 78 of the New York State Civil Practice Law and Rules,

against

New York State Department of Environmental Conservation (OFFICE OF MANAGEMENT and BUDGET SERVICES) and DENISE M. SHEEHAN, COMMISSIONER, GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS, and GEORGE H. MADISON, DIRECTOR, Respondents.



2259-06



Nancy E. Hoffman, General Counsel

Civil Service Employees Association, Inc.

Attorney For Petitioners

Box 7125, Capitol Station

143 Washington Avenue

Albany, New York 12224

(Miguel G. Ortiz, of counsel)

Eliot Spitzer

Attorney General of the

State of New York

Attorney For Respondents

The Capitol

Albany, NY 12224-0341

(Risa L. Viglucci, Assistant Attorney

General, of Counsel)

George B. Ceresia, J.

Petitioner Anthony Vignola ("petitioner") was employed by the respondent New York State Department of Environmental Services ("DEC") from August 1999 to January 13, 2005 as a laborer. His rate of pay was $10.68 per hour. On January 14, 2005 he was appointed to the position of Calculations Clerk I. On the same day his rate of pay was reduced to $10.10 per hour. His rate of pay was increased, on April 7, 2005, to $10.38 per hour. The petitioners allege that the reduction in pay constituted a violation of a side-letter agreement which existed between the petitioner Civil Service Employees Association, Inc. ("CSEA") and the State of New York. According to the petitioners, the side-letter agreement provided salary protection for long-term seasonal employees. Specifically, they allege that under the side-letter agreement the salary of a long-term seasonal employee such as petitioner could not be decreased when the employee was transferred from one seasonal position to another, or to an annual salaried position.

Upon receiving the reduction in pay on January 14, 2005, petitioner, through CSEA, filed a contract grievance. The parties waived Step 1 of the grievance process, permitting the grievance to proceed directly to Step 2. On August 31, 2005 DEC's Office of Employee Relations denied the Step 2 grievance. On September 22, 2005 CSEA requested that the grievance be amended to a "non-contract grievance". On December 12, 2005 the New York State Governor's Office of Employee Relations ("GOER") rendered a Step 3 decision, denying the non-contract grievance. The petitioners subsequently commenced the above-captioned CPLR Article 78 proceeding seeking review of the grievance determination.

Respondents maintain that the petitioner held various temporary positions from August 1999 to January 13, 2005 in seasonal line items, but that he was never a long-term seasonal employee and therefore not covered by the side-letter agreement. They assert that the definition of "seasonal employee" is governed by Rule 4.4 of the Rules For Classified Service (see 4 NYCRR § 4.4), and only applies to a permanent position in the competitive class, a position which petitioner has never held. Respondents assert that petitioner's appointment to the Clerk 1 position was not a transfer from the laborer position, but rather merely another temporary appointment.

The Court is mindful that the Court's role in reviewing an administrative determination is not to substitute its judgment for that of the agency, but simply to ensure that the agency determination has a rationale basis and is not arbitrary and capricious (see Matter of Warder v Board of Regents, 53 NY2d 186, 194; Matter of Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363; Akpan v Koch, 75 NY2d 561, 570). "The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact'" (Matter of Pell v Bd. of Educ., 34 NY2d 222, 231 [1974], citations omitted). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (id.).

The Court must first observe, as pointed out by the petitioners, that the Step 2 and Step 3 grievance decisions at issue here do not provide a rationale for denial of the grievance [FN1]. It is well settled that " a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate or proper'" (Matter of Village Estates Condominium Association v Planning Board of the Town of Lake George, 298 AD2d 665, 667 [3rd Dept., 2002] quoting Matter of Berchielli v Zoning [*2]Bd. of Appeals of Town of Westerlo, 202 AD2d 733, 734, lv denied 83 NY2d 757, and citing Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 678). In this instance, as was the case in Matter of Van Antwerp v Board of Education For The Liverpool Central School District (247 AD2d 676, 678-679 [3rd Dept., 1998]), because the grievance decisions provided no rationale for their ruling, the Court "[is] left with essentially nothing to support the respondent's determination" (id., at 679). For this reason alone, the grievance determinations must be annulled.

The interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance (see, W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162 [1990]). In making this determination the objective is to ascertain the parties' intention as derived from the language employed in the contract (see, Chimart Assocs. v Paul, 66 NY2d 570, 573; Teitelbaum Holdings v Gold, 48 NY2d 51, 56). A court is duty-bound to adjudicate the parties' rights according to unambiguous provisions and give words and phrases employed their plain meaning (see, Sanabria v American Home Assur. Co., 68 NY2d 866, 868; Laba v Carey, 29 NY2d 302, 308; Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). The existence of an ambiguity will not preclude summary judgment unless resolution of that ambiguity depends upon extrinsic evidence (see, Hudson-Port Ewen Assocs. v. Chien Kuo, 165 AD2d 301, 303, affd 78 NY2d 944; County of Albany v. Albany County Industrial Development Agency, 218 AD2d 435, 439 [Third Dept., 1996]. " [E]xtrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face'" (W.W.W. Assocs. v Giancontieri, supra, p. 163, quoting Intercontinental Planning v Daystrom Inc., 24 NY2d 372, 379).

The side-letter agreement dated April 27, 2004, recites in pertinent part as follows:

"* * * The following benefits will be extended to long-term seasonal employees within . . .the Department of Environmental Conservation.

"Effective upon ratification of this Agreement salary protection is guaranteed for an employee with two consecutive years of service if subsequently appointed to an annual-salaried position or another seasonal position. . . .Such a guarantee provides that no seasonal employee shall be paid less than the annualized earnings (excluding overtime) for the calendar year immediately preceding the appointment to the annual-salaried position or another seasonal position....

"Effective upon ratification of this Agreement a lump sum award of $500 will be payable in the first pay period of fiscal year 2004-2005, fiscal year 2005-2006, and fiscal year 2006-2007 to an employee who has had at least 1500 hours in pay status in seasonal positions during each of the previous five years."

Article I of the Collective Bargaining Agreement between petitioner CSEA and the State recites that "[t]he terms employee' or employees' as used in this Agreement shall mean only employees serving in positions in such unit and shall include seasonal employees where so specified." The agreement also contains Appendix III, entitled "Seasonal Employees," which recites:

"The contents of this Appendix shall apply to employees appointed to seasonal positions. For purposes of this Appendix, a seasonal position is defined, as a position that is not established on a continuous basis throughout the year, but may be reestablished in successive years. Seasonal positions are utilized for a specified period of time in conjunction with department or agency seasonal program needs. [*3]

"The provisions of this Agreement shall pertain to employees appointed to seasonal positions to the extent they are applicable. * * *"

Notably, neither the side-letter agreement, the Collective Bargaining Agreement, nor Appendix III make any attempt to differentiate between types of seasonal employees. Rule 4.4 (a) of the Rules of the Department of Civil Service recites as follows:

"Positions in the competitive class where the nature of service is such that it is not continuous throughout the year, but recurs in each successive year, except as herein otherwise provided, shall be designated as seasonal positions and shall be subject to the provisions of these rules applicable generally to positions in such class." (4 NYCRR § 4.4)

From a reading of the foregoing, while certain competitive class positions (that are not continuous throughout the year) may be designated seasonal, it does not necessarily follow that all seasonal positions come from the competitive class.Thus, from all of the foregoing, the Court finds that the side-letter agreement applies to all long-term seasonal employees, even if they are not appointed to a permanent competitive position. Had the parties desired to draw a distinction between temporary seasonal employees and other seasonal employees, they certainly could have done so.

Of great significance, as the petitioner points out (and which is not disputed), in 2005 and 2006 petitioner received the $500 lump sum award payable to long-term seasonal employees under side-letter agreement. The foregoing provides evidence of respondents' own interpretation of the side-letter agreement to include the petitioner as a long-term seasonal employee. Thus, to the extent that there may be an ambiguity in the side-letter agreement with respect to its application to the petitioner, the Court finds that the ambiguity must be resolved in favor of the petitioner by reason of respondents' own construction thereof.

The Court finds that the grievance determination is irrational, arbitrary and capricious. The Court concludes that the petition must be granted.

Accordingly,

ORDERED and ADJUDGED, that the petition be and hereby is granted; and it is

ORDERED and ADJUDGED and DECLARED, that respondent New York State Department of Environmental Conservation and respondent Governor's Office of Employee Relations breached the side-letter agreement between petitioner CSEA and the State of New York when it failed to maintain petitioner Vignola's salary at the rate of pay of $10.68 per hour when he was appointed to the position of Calculations Clerk I on January 14, 2005; and it is further

ORDERED and ADJUDGED, that petitioner Vignola is awarded back pay in the form of the pay differential between the rate of $10.68 per hour and the actual hourly rate he was paid commencing on January 14, 2005 when he was appointed to the Calculations Clerk I position, including any increases in pay he would have received had respondents not breached the side-letter agreement between petitioner CSEA and the State of New York.

This shall constitute the decision/order/judgment of the Court. All papers are returned to the attorney for the petitioners, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated:October 31, 2006S/______________________________________

Troy, New YorkGeorge B. Ceresia, Jr.

Supreme Court Justice [*4]

Papers Considered:

1.Notice of Petition dated April2006, petition, Supporting Papers and Exhibits 2.Respondents' Answer dated June 16, 2006, Supporting Papers and Exhibits

3.Affirmation of Risa L. Viglucci, Esq., dated June 14, 2006

4.Affidavit of Guy Dugas, sworn to July 21m 2006, Supporting Papers and Exhibits

5.Affidavit of Ernest M. Lee, Jr., sworn to July 20, 2006

6.Affidavit of Ross Hanna, sworn to July 21, 2006 Footnotes

Footnote 1:The Step 2 grievance decision recited: "Although the Department is sympathetic to the Grievant's situation, it remains Management's understanding that the long-term seasonal salary protection benefit is not applicable in this instance. Accordingly, the grievance is denied." The Step 3 grievance decision recited: "This reviewer agrees with the determination reached at Step 2 of the grievance procedure. Accordingly, no violation is found."