Matter of City of New York v Sanitation Officers Assn. Local 444 S.E.I.U. AFL-CIO

[*1] Matter of City of New York v Sanitation Officers Assn. Local 444 S.E.I.U. AFL-CIO 2006 NY Slip Op 52189(U) [13 Misc 3d 1240(A)] Decided on October 17, 2006 Supreme Court, New York County Lippmann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2006
Supreme Court, New York County

In the Matter of the Application of The City of New York; the Mayor's Office Of Labor Relations; James F. Hanley, as Commissioner of the Mayor's Office of Labor Relations; the Department of Sanitation of the City of New York; And, John Doherty, as Commissioner of the Department of Sanitation of the City of New York, Petitioners,

against

Sanitation Officers Association, Local 444, S.E.I.U. AFL-CIO, and Joseph Mannion, as President of the Sanitation Officers Association, Local 444, S.E.I.U. AFL-CIO, Respondents.



116456/05

Robert D. Lippmann, J.

Upon the foregoing papers, petitioners move for a judgment and order, pursuant to CPLR 7511 (b), vacating the award of Arbitrator Eugene M. Kaufman (Arbitrator Kaufman) in the matter of the Arbitration between The Sanitation Officers Association, Local 444, S.E.I.U. v The New York City Department of Sanitation, Case No. A-10278-03, (the Award), dated November 16, 2005, on the grounds that the arbitrator exceeded his power and jurisdiction, the Award is irrational, the Award violates public policy, and the Award imposes a penalty.

Respondents cross-move for an order and judgment, pursuant to CPLR 7510, confirming the Award of Arbitrator Kaufman in the above-mentioned arbitration.

Plaintiff, the Department of Sanitation of the City of New York (the Department), is an agency of the City of New York (the City). Respondent, Sanitation Officers Association, Local 444, S.E.I.U. AFL-CIO (the Union), is a labor organization and the certified bargaining representative of City employees in the titles of Sanitation Supervisor and Sanitation Superintendent Level 1 in the Department.

This petition arises out of Arbitrator Kaufman's decision and Award which found that respondents wrongfully failed to provide a supervisor for each district to supervise the operators [*2]of mechanical brooms during the evening shifts. The Award directed the City to compensate the Night District Supervisor or Field Supervisor on the appropriate overtime list, who would have received the assignment from April 14, 2004 to November 16, 2005.

Since 2003, the City has been divided into 59 districts for the purposes of cleaning and collection. Each district is headed by a district superintendent who has the responsibility of planning work schedules and assigning personnel and equipment to operations within the district. The districts, in turn, are divided into sections. There is a supervisor for each section. The Department operates several types of equipment, including collection trucks, public trash basket collection trucks, and mechanical brooms or street sweepers. Sanitation supervisors are assigned to different districts to direct field operations involving street cleaning, refuse, recycling, and snow and ice removal.

RELEVANT CONTRACTUAL PROVISION

Pursuant to Article VII, section 7 (c) (i) of the Collective Bargaining Agreement (the 2003 Agreement) between the City and the Union,[FN1] "[w]hen a piece of equipment is assigned to functional operations, an officer must be assigned for supervision."

THE PRIOR ARBITRATION

In April 1993, the Union filed a grievance alleging that in five districts in Brooklyn, the supervisors were not being assigned to supervise equipment during the day shift, notwithstanding that equipment was assigned to functional operations. Arbitral hearings were held in late 1996 and early 1997 before Arbitrator Edmund G. Gerber (Arbitrator Gerber), on the issue of whether the Department violated Article VII section 7 (c) (i) of the Collective Bargaining Agreement between the parties in the winter of 1992-1993, and if so, what the remedy should be. After holding hearings in the Matter of the Arbitration Between Sanitation Officers Association, Local 444, S.E.I.U., AFL-CIO v The City of New York and The Department of Sanitation, Case No. A-5221-94, Arbitrator Gerber issued an Award, dated April 22, 1997, in favor of the Union.

He found that, under Article VII, Section (7) (c)( i) of the parties' Collective Bargaining Agreement, the City must assign an officer to supervise when a mechanical broom is operating on its route, and that the City can assign anyone it chooses to supervise, including an adjoining section supervisor. However, he noted that it was physically impossible for a supervisor to effectively supervise an adjoining section due to the size of the sections.

He determined that, in order to satisfy the contractual meaning of "supervision," and in order to conform to the understanding of the parties, supervision requires the performance of specific duties, and not merely the existence of an officer meeting the broom at a pre-arranged location and signing off on the broom's performance report. He noted from the testimony that there are specific duties which comprise the act of supervision, among them, enforcement of [*3]parking regulations, inspection of cleaning, and signing off twice a day.

On the basis of the entire record, Arbitrator Gerber sustained the Union's grievance, finding that the Department violated Article VII, Section 7 (c) (i) of the contract in the winter of 1992/1993. He limited the remedy to the winter of 1992-1993, and directed that the Department "cease and desist from causing to operate mechanical brooms or any piece of equipment without assigning actual supervision." He further directed the Department to open the Carting Books in Brooklyn South to the Union for the 1992-1993 winter season, and to compensate the sanitation officers on the overtime list for every violation found.

Thereafter, the Union petitioned the court for an order confirming Arbitrator Gerber's Award, and the City cross-petitioned for an order striking the "cease and desist" portion of the Award. The City argued that the arbitrator exceeded his authority by, inter alia, fashioning a remedy into the effective period of a subsequent agreement, the terms of which were not before him.

By decision and order, dated January 7, 1998, Justice Diane A. Lebedeff held, among other things, that the arbitrator had not exceeded his authority since the relevant contractual language in the subsequent agreement remained unchanged from the earlier one. She confirmed the Arbitrator's Award. She further ruled that stare decisis would bind the governmental agencies to comply with the effect of Arbitrator Gerber's decision. The City did not appeal the court's order.

THE PRESENT PETITION

Thereafter, the Union filed another grievance alleging that the Department was violating the provisions of Article VII, Section 7 (c) (i) of the 2003 Agreement by not assigning a sanitation officer to supervise during the 4 p.m. to midnight and midnight to 8 a.m. work shifts, when sanitation workers were assigned to functional operation of equipment.

Arbitrator Kaufman was appointed to hear and determine the grievance filed by the Union. The parties stipulated to the following issue: "Did the New York City Department of Sanitation violate Article VII, Section 7 (c) (i) of the Collective Bargaining Agreement by failing to provide the actual supervision by an officer on the 4-12 and 12-8 shifts when equipment was assigned to functional operation? If so what shall the remedy be?".

Hearings were conducted at the offices of the New York City Office of Collective Bargaining, on September 20, 2004, September 21, 2004, December 17, 2004, December 18, 2004, March 6, 2005, July 11, 2005, and August 2, 2005. The Union and the City were each represented by their own attorneys, and both sides were given an opportunity to examine and cross-examine witnesses, to place documents into evidence, and to submit post-hearing briefs.

In his decision, Arbitrator Kaufman noted Arbitrator Gerber's findings. He also noted the Union's testimony that, because of the size of their own district and the size of the neighboring district, it was impossible to conduct a proper supervision of both districts. It was further noted that, with one or two exceptions, the City failed to cross-examine the Union's witnesses; and, while the City offered evidence that the city streets were cleaner than before, it failed to address the issues raised by the parties and submitted to arbitration.

By decision and Award dated November 16, 2005, Arbitrator Kaufman found that the City "failed to provide a supervisor for each district to supervise when equipment goes out on a functional operation," and ruled in favor of the Union. He found that the City has continued to violate the Collective Bargaining Agreement despite Arbitrator Gerber's decision and that of the [*4]court; thus, it would be futile to issue a cease and desist order. He directed that:

the Carting Books City Wide be opened from April 14, 2003 to the present, and for every violation discovered, the Night District Supervisor or Field Supervisor on the appropriate overtime list, who would have received the assignment be compensated at the appropriate rate.

The petitioners argue that Arbitrator Kaufman's Award should be vacated on the ground that he exceeded his authority in determining what constitutes satisfactory levels of supervision by Department officers. Petitioners further argue that the overtime, which Arbitrator Kaufman directed that the City pay, constitutes a punishment for the City's alleged failure to obey the Gerber Award and its stare decisis impact. They claim that the Award constitutes punitive damages, which are unavailable in arbitration, and which violates the public policy of this State.

THE RELEVANT LAW AND DISCUSSION

New York State has a public policy which strongly favors resolving disputes in the arbitral forum (Azrielant v Azrielant, 301 AD2d 269 [1st Dept 2002], lv denied 99 NY2d 509 [2003]). Pursuant to CPLR 7511 (b), an arbitration award will not be vacated unless a party's rights were prejudiced by corruption, fraud or misconduct (CPLR 7511 [b] [1] [i], bias (CPLR 7511 [b] [1] [ii]), the arbitrator exceeded his power (CPLR 7511 [b] [1] [iii], or the arbitrator's failure to follow procedures (CPLR 7511 [b] [1] [iv]) (Azrieland v Azrielant, 301 AD2d 269, supra). In addition, an arbitration award will be vacated if it is totally irrational, or if it violates a strong public policy (United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of New York, 1 NY3d 72, 80 [2003]). However, "the scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow [citation omitted]" (id.). As the Court noted in Matter of New York City Transit Authority v Transport Workers Union of America, Local 100, AFL-CIO (99 NY2d 1, 7 [2002]), "[j]udicial restraint under the public policy exception is particularly appropriate in arbitrations pursuant to public employment collective bargaining agreements."

Moreover, an arbitrator has the power to construct a remedy that is best suited to the facts of a case without regard to the restrictions, including the rules of evidence or substantive law, faced by a court of law (id.; Matter of Silverman v Benmor Coats, Inc., 61 NY2d 299, 308 [1984]; Board of Educ. of Cent. School Dist. No. 1 of Towns of Niagara, Wheatfield, Lewiston and Cambria v Niagara-Wheatfield Teachers Assn., 46 NY2d 553 [1979]; Rochester City School District v Rochester Teachers Assn., 41 NY2d 578 [1977]). A court does not have the authority to substitute its judgment for an arbitrator's assessment of the evidence, interpretation of the contract, or reasoning in determining the appropriate award (see Matter of New York State Correctional Officers and Police Benevolent Assn., Inc. v State of New York, 94 NY2d 321, 326 [1999]). An arbitration award will be affirmed "if any plausible basis exists for the award" (Graniteville Co. v First Natl. Trading Co., Inc., 179 AD2d 467, 469 [1st Dept], lv denied 79 NY2d 759 [1992], citing Matter of Silverman v Benmor Coats, Inc., 61 NY2d 299, supra).

In keeping with the above principles, this court concludes that the Award at issue herein does not fall within the grounds for vacating an arbitration award.

Petitioners' contention that Arbitrator Kaufman exceeded his authority by disregarding the Department's right to determine the standards for suitable supervision, and that this also violated public policy, is without merit. They cite to New York City Administrative Code § 12-307 (b), which states, in relevant part: [*5]

[i]t is the right of the city, or any other public employer ... to determine the standards of services to be offered by its agencies; ... direct its employees; ... maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; ... and exercise complete control and discretion over its organization and the technology of performing its work.

Likewise meritless is petitioners' argument that the Award violates the 2003 Agreement by ignoring Article VIII, Section 2. This section states, in pertinent part: "The Union recognizes [the Department's] right under the [2003 Agreement] to establish and/or revise standards for supervisory responsibility ... ."

The general right of the Department to determine the standards of services to be provided by their employees, to direct those employees, and to exercise control and discretion over the Department, does not in any direct, or absolute sense, set forth specific duties or standards for supervision (see Matter of New York City Transit Authority v Transport Workers Union of America, Local 100, AFL-CIO, 99 NY2d at 2). There is nothing that is well-defined in the statute, nor in the 2003 Agreement, which would prohibit an arbitrator, acting pursuant to a Collective Bargaining Agreement, from determining the contractual meaning of the term "supervision," nor in fashioning what the arbitrator feels is an appropriate remedy (see United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of New York, 1 NY2d at 82).

Also meritless is petitioner's contention that Arbitrator Kaufman's decision and Award is inconsistent with the Gerber decision and Award, and should be vacated on that basis. Although Arbitrator Gerber found that the Collective Bargaining Agreement did not prohibit supervisors from one section from supervising department equipment in an adjacent section, he explicitly determined that, in order to comply with Article 7, section 7 (c) (i), of the agreement, specific duties must be performed, which were not being performed.

Arbitrator Gerber's decision and Award is not inconsistent with Arbitrator Kaufman's decision and Award. Both agreed that the language of the relevant provision in the Collective Bargaining Agreement gives the City the right to assign anyone it chooses to supervise; however, both noted that it was not possible for a supervisor to properly supervise two sections or districts due to their size, which was not refuted by the City. Both were clearly concerned that the mechanical equipment was not being properly supervised. In any event, even were the Awards inconsistent, the existence of a prior award which is inconsistent with one sought to be vacated is not a ground to vacate an arbitration award (see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846 [1984]; Vilceus v North River Ins. Co., 150 AD2d 769 [2d Dept 1989]).

Petitioners further assert that the Award, which directs that overtime be paid by the City, constitutes punitive damages. It is well settled that New York does not permit arbitrators to award punitive damages (Garrity v Lyle Stuart, Inc., 40 NY2d 354 [1976]; Matter of Dreyfus Service Corp. [Kent], 183 AD2d 446 [1st Dept], lv denied, 81 NY2d 701 [1992]). However, "the mere possibility that [punitive] damages were included in the arbitrator's award does not warrant disturbing the award" (Matter of West Side Lofts, Ltd. v Sentry Contracting, Inc., 300 AD2d 130 [1st Dept 2002]). Only where it is clear that the arbitrator intended to award punitive damages should the Award be vacated (Board of Education of Central School District No. 1 of Towns of [*6]Niagara, Wheatfield, Lewiston and Cambria v Niagara Wheatfield Teachers Assn., 46 NY2d at 558; Weidman v Fuchsberg, 177 AD2d 342, 345 [1st Dept 1991]).

Here, there is no indication by Arbitrator Kaufman in the decision that the Award was intended as punitive damages. He specifically refers to the Award as an "appropriate remedy," since issuing a cease and desist order "would be a waste of time." Further, Justice Lebedeff affirmed an essentially similar award in the Gerber arbitration, which was not appealed by the City.

This court has considered petitioners' other arguments and found them to be without merit. Since the Award is neither violative of a strong public policy nor totally irrational, and Arbitrator Kaufman did not exceed a specifically enumerated limitation on his power, petitioners' motion to vacate is denied, and respondents' motion to confirm the Award is granted.

Accordingly, it is

ORDERED that the petition to vacate the Award is denied; and it is further

ORDERED and ADJUDGED that respondents' cross petition to confirm the Award is granted and the award rendered in favor of the respondents is confirmed.

Dated:October 17, 2006

ENTER:

ROBERT D. LIPPMANN, J.S.C. Footnotes

Footnote 1: On or about May 13, 2003, the Union and the City entered into a collective bargaining agreement (the 2003 Agreement) for the title of Sanitation Supervisor and Sanitation Superintendent Level I, covering the period from October 1, 2000 through April 30, 2003. Notwithstanding its expiration, the 2003 Agreement remains in full force and effect. The language of Article VII, § 7 (c) (i) has essentially remained unchanged from the 1992 and 1995 Agreements.