Town of Wallkill v Town of Wallkill Police Benevolent Assn.

[*1] Town of Wallkill v Town of Wallkill Police Benevolent Assn. 2006 NY Slip Op 52699(U) [25 Misc 3d 1202(A)] Decided on May 12, 2006 Supreme Court, Orange County Owen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2006
Supreme Court, Orange County

Town of Wallkill, Petitioner,

against

Town of Wallkill Police Benevolent Association, Respondent.



1138/06



GREENWALD LAW OFFICES

Attorneys for Petitioner

99 Brookside Avenue

Chester, New York 10918

MICHAEL SUSSMAN, ESQ.

Attorney for Respondent

25 Main Street, P.O. Box 1005

Goshen, New York 10924

Joseph G. Owen, J.

This CPLR 7511 proceeding seeks vacatur of an arbitration award which, inter alia, directed that grievant Adam Bruce be reinstated to an overtime rotation in his position as an officer with the Town of Wallkill Police Department. For the reasons stated herein, the petition is dismissed.

Submit judgment to Orange County Clerk, as Clerk of the Court, with bill of costs.

Grievant Adam Bruce is an officer with the Town of Wallkill Police Department (the "Department"), located in Wallkill, New York. On December 12, 2003, Bruce was involved in an incident which caused the Department to direct that he be psychiatrically evaluated. Subsequently, in a written report dated February 8, 2004, Bruce was found by the appointed psychiatrist to be fully fit to perform his duties. However, the Chief of Police thereafter continued Bruce on a modified duty assignment which precluded his participation in an overtime rotation.

A grievance was filed by respondent Town of Wallkill Police Department Association on February 23, 2004, and the matter proceeded to arbitration pursuant to the provisions of the collective bargaining agreement (the "Agreement"). Following a hearing and consideration of [*2]written submissions, arbitrator Kathleen M. Devine rendered a written determination which held that petitioner violated the Agreement by unilaterally removing Bruce from overtime rotation, and directed that Bruce be reinstated to the rotation with retroactive overtime payments from the date that grievant was declared fit to serve. By this CPLR 7511 proceeding, petitioner seeks to vacate that award.

Petitioner argues, in essence, that the arbitrator exceeded her authority (see, CPLR 7511[b][1][iii]). Under the applicable subdivision, "it is well established that only three grounds exist for challenging an arbitrator's determination of the controversy: (1) the arbitrator has exceeded a specifically enumerated limitation on his authority; (2) the decision is totally irrational; or (3) the award is violative of a strong public policy. . .." (Matter of G.E.I.C.O. General Insurance Co. v Canal Insurance Co., 189 Misc 2d 467, 468). "Arbitration awards may not be vacated even if the court concludes that the arbitrator's interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on his power" (In the Matter of Wicks Construction, Inc. v Green, 295 AD2d 527, 528).

In arguing that the arbitrator exceeded a specifically enumerated limitation on her authority, petitioner cites Section 29.13 of the Agreement, which provides in pertinent part as follows: Section 29.13: The arbitrator and his/or her opinion award shall not modify, nullify, ignore, add to, or subtract from the provisions of the collective bargaining agreement, and the arbitrator shall have no authority to impose on either party a limitation or obligation not explicitly provided for in the collective bargaining agreement.

In essence, petitioner argues that no specific provision of Article 6 of the Agreement (governing overtime) gives any officer the right to participate in an overtime rotation. Rather, according to petitioner, Article 21 of the Agreement gives the Chief of Police broad managerial authority over employee work schedules including, purportedly, the unfettered right to indefinitely preclude an officer from participating in an overtime rotation even if that officer is fit for duty. Thus, argues petitioner, the arbitrator effectively added to the provisions of the collective bargaining agreement by creating a "right" to overtime.

The arbitrator considered all of petitioner's arguments in this regard. After making factual findings that the grievant had been declared fit for duty and that no properly commenced disciplinary proceedings under Article 29 of the Agreement were then pending[FN1], the arbitrator [*3]concluded as follows:

While I agree with the Town that there is no "right" to overtime, the fact remains that if an officer is considered to be "fit for duty", he is entitled to receive all those contractual benefits that all the other Officers receive. To do otherwise put [sic] the Town in a position of acting in an arbitrary and capricious manner.

(November 8, 2005 Determination of Arbitrator Kathleen M. Devine, p. 14).

Article 6 of the Agreement provides, in part, as follows: Section 6.3 - Overtime Rotation:

(A) Overtime shall be first assigned on a voluntary basis in seniority order in accordance with the seniority roster maintained pursuant to Article 22 of this agreement. When overtime becomes available as decided by the Chief, the Department will attempt to contact employee(s) in seniority order . . ..

Grievant does not seek any special treatment with respect to the implementation of this overtime rotation. Rather, as an officer who has been officially declared fit for duty, he merely seeks that he be permitted to participate in the rotation in the same manner as other fit for duty officers. The arbitrator's decision is consistent with a finding that, contrary to petitioner's contentions, nothing in the general managerial provisions of the Agreement gives petitioner the unfettered right to unilaterally and arbitrarily abrogate the seemingly mandatory provisions of Section 6.3. The above-quoted Agreement subsection is not drafted in permissive form. Rather, it provides that "[o]vertime shall be first assigned on a voluntary basis in seniority order . . .[and that] [w]hen overtime becomes available . . .the Department will attempt to contact employee(s) in seniority order."

Accordingly, the Arbitrator neither gave grievant a right, nor imposed upon the Department a duty, that did not already exist in the Agreement. At best, petitioner disagrees with the Arbitrator's interpretation of the Agreement. This type of disagreement is certainly not sufficient ground to vacate the award.

Finally petitioner argues, in essence, that as grievant is only entitled to overtime pay if he actually worked overtime, the arbitrator's damages award gives him relief not provided for in the Agreement. To the extent that the Court understands this circular logic, petitioner seems to argue that, as long as it continues to breach the Agreement by improperly precluding grievant from participating in the overtime roster, even when he is declared fit, it may never be directed to pay retroactive damages. The Court will not accept this logic. It was the arbitrator's finding that, absent petitioner's violation of the Agreement, grievant would have been permitted to participate in the overtime rotation and would have received overtime pay. The damages award simply retroactively enforces the pertinent provisions of the Agreement under standard contract principles. [*4]

HON. JOSEPH G. OWEN

SUPREME COURT JUSTICE

Dated: May 12, 2006

Goshen, New York

APPEARANCES:

GREENWALD LAW OFFICES

Attorneys for Petitioner

99 Brookside Avenue

Chester, New York 10918

MICHAEL SUSSMAN, ESQ.

Attorney for Respondent

25 Main Street, P.O. Box 1005

Goshen, New York 10924 Footnotes

Footnote 1:With respect to this finding, petitioner argues that the disciplinary methods set forth in Article 29 of the Agreement are illustrative only, and that the arbitrator ignored the fact that the Town had other managerial rights. This argument borders on the ridiculous. Whatever the Town's managerial authority may or may not be, the arbitrator simply found that, given the fact that the grievant also had rights under the Agreement, this authority could not be wielded in an arbitrary and capricious manner. At one point during the hearing the arbitrator, struggling to find some rational basis for petitioner's continued preclusion of grievant from the overtime roster, asked " Who will the Town Board consider the appropriate person to return Bruce to full duty?' At the hearing, it was obvious, there is no one the Town considered to be fitting" (November 8, 2005 Determination, p. 15). The Court will not disturb the arbitrator's factual finding that no proper disciplinary proceedings were pending against Bruce.