Civil Serv. Empl. Assn., Inc. v County of Nassau

[*1] Civil Serv. Empl. Assn., Inc. v County of Nassau 2009 NY Slip Op 51819(U) [24 Misc 3d 1240(A)] Decided on July 27, 2009 Supreme Court, Nassau County Winslow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2009
Supreme Court, Nassau County

Civil Service Employees Association, Inc., A.F.S.C.M.E., LOCAL 1000, A.F.L.-C.I.O., by its LOCAL 830 (CA 64-01, 49-04, 50-04 et al), and LAURA GILDERSLEEVE, VIRGINIA ADDISON, PAUL SCADUTO, RANDOLPH GHISONE, THERESA McGUINNESS, JAMES SINACORE, JUDITH BEJARANO, ERNEST JACKSON, and CHRISTINE ROBINSON, on behalf of themselves and all other similarly situated employees, Plaintiffs,

against

The County of Nassau, Defendant.



6123/06

F. Dana Winslow, J.

This is an action brought by and on behalf of the CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., A.F.S.C.M.E., LOCAL 1000, A.F.L.-C.I.O. by its LOCAL 830 ("CSEA"), the bargaining agent for a unit of employees within the COUNTY OF NASSAU (the "COUNTY"), together with the individually named COUNTY employees and all other employees similarly situated, alleging that the COUNTY breached the Collective Bargaining Agreement ("CBA") between the CSEA and the COUNTY when it failed to properly compensate employees who were promoted during the period from January 1, 1998 through December 31, 2000. Plaintiffs are seeking the correction of the improper step and/or grade placements and monetary damages as a result of the breach. The COUNTY moves for summary judgment pursuant to CPLR §3212 dismissing the action on the grounds that (i) there was no breach of contract; or (ii) the subject grievances are untimely and barred by the doctrine of res judicata. Plaintiffs cross-move for summary judgment for the relief sought in the Complaint. Counsel agree that the underlying facts in this case are not in dispute and that the matter is amenable to summary judgment.

Overview [*2]

The dispute centers on Section 25-5 of the CBA, which governs the compensation of employees upon promotion or change of position to a higher salary grade. Section 25-5 of the CBA dated January 1, 1998 through December 31, 2002 (the "1998-2002 CBA") provided for a minimum $1,000 annual salary increase (the "$1,000 Minimum Provision") for all employees promoted during the effective period. It states (in relevant part): "... if a promotion or a change to a position in a higher salary grade under the foregoing would result in less than a $1,000 annual raise, then, effective 1/1/99, any employee promoted or changed to a position in a higher salary grade shall be placed on a step (in the new Grade) which will result in an annual salary increase of at least $1,000."

The prior CBA, dated January 1, 1993 through December 31, 1997 (the "Prior CBA"), contained no such provision. The COUNTY contends, in essence, that promotions occurring prior to the signing and ratification of the 1998-2002 CBA, which took place on September 11, 2000, are governed by the Prior CBA. Therefore, employees promoted in 1998, 1999 and 2000 (prior to 9/11/00) are not entitled to the $1,000 minimum increase. Plaintiffs contend that the $1,000 Minimum Provision is, by its terms, effective retroactively, commencing on January 1, 1999, and that employees promoted in 1999 and 2000 are entitled to the $1,000 minimum increase.

Plaintiffs concede that the provision for a $1,000 Minimum Provision does not apply to promotions that occurred in 1998. Conversely, the COUNTY concedes that the provision does apply to promotions that occurred after September 11, 2000. The period of time at issue is from January 1, 1999 through September 11, 2000.

Facts and Procedural History

For clarity and ease of reference, the facts and procedural history of this case shall be presented in chronological format.

April 25, 2001 — CSEA filed Class Action ("CA") Grievance 64-01, alleging that the COUNTY breached Section 25-5 of the CBA by improperly placing employees, upon promotion, in the incorrect step/grade on the relevant graded salary schedule [Motion Exh. E]. After proceeding through the grievance procedure set forth in Section 23 of the CBA, CA Grievance 64-01 was referred to arbitration.

June 16, 2003 — At a hearing held this date, Arbitrator Martin F. Scheinman ("Scheinman") rendered an award sustaining the grievance for CSEA members who received promotions in 2001, and directing the COUNTY to review the promotions in that period for purposes of determining whether or not they were treated properly (the "June 16, 2003 Award") [Motion Exh. F]. [*3]

June 7, 2004 — Scheinman issued a letter in which he clarified the June 16, 2003 Award by including the additional years of 2002, 2003, and 2004 within the scope of the award. He denied, however, the application by CSEA to include calendar year 2000 promotions within the subject grievance.

July 1, 2004, and June 24, 2004* CA Grievance 49-04 and Individual Grievance 50-04 (Laura Gildersleeve) were filed [Motion Exh. J & K, respectively]. CA Grievance 49-04 was filed on behalf of employees promoted during the period from January 1, 1999 through December 31, 2000. Individual Grievance 50-04 concerned one employee who was promoted in 2000. Both grievances alleged the same violation of CBA Section 25-5 as alleged in CA Grievance 64-01. (* Insofar as there were discrepancies in the papers, the Court used the "Date of Grievance" designated on the grievance forms.)

December 7, 2005 CA grievance 49-04 and Individual Grievance 50-04 were consolidated and heard at a single arbitration proceeding before Arbitrator Robert T. Simmelkjaer ("Simmelkjaer") [Motion Exh. L].

March 7, 2006 Simmelkjaer issued an advisory award determining that CA Grievance 49—04 and Individual Grievance 50-04 were not arbitrable on the grounds of res judicata and untimeliness.

April 11, 2006. The instant lawsuit was commenced. Class action status was granted by Short Form Order dated October 17, 2007 and entered on October 31, 2007.

The Breach of Contract Claim.

The question to be determined is whether or not the COUNTY breached the CBA by placing (and retaining) employees promoted in the period from January 1, 1999 through December 31, 2000 in an improper step/grade on the relevant graded salary schedule. This, in turn, depends upon (1) whether or not the 1998-2002 CBA (containing the $1,000 Minimum Provision) governed promotions during this period; and, if so, (2) whether or not the COUNTY was obligated to retroactively review and recalculate step/grade placements made during this period, which, the COUNTY contends, were proper when made.

The COUNTY relies upon a statutory provision known as the Triborough doctrine, which states that: "It shall be an improper practice for a public employer or its agents deliberately ....to refuse to continue all the terms of an expired agreement until a new agreement is negotiated..." Civil Service Law § 209-a (1)(e). The COUNTY argues that, pursuant to the Triborough doctrine, the Prior CBA continued in effect after its expiration on December 31, 1997, until the signing and ratification of the 1998-2002 CBA on September 11, 2000. Employees promoted prior to September 11, 2000 were properly placed in accordance with the terms of the Prior CBA, which did not include the $1,000 Minimum Provision. The COUNTY argues that the determination with respect to salary grade and step is made on the day of the promotion, and that [*4]the COUNTY is not obligated to go back and recalculate based upon a retroactive provision in a subsequent contract. The COUNTY notes Arbitrator Scheinman's concurrence with this position, as reflected in the arbitration minutes [Motion Exh. F, p. 89, lines 22-25; p.90, lines 2-3, 8-11], and in his refusal to include calendar year 2000 promotions in the June 16, 2003 Award.

Plaintiffs argument is essentially twofold. First, plaintiffs assert that the 1998-2002 CBA came into effect on February 17, 1999, and not on September 11, 2000, as posited by the COUNTY. On February 17, 1999, the CSEA and the COUNTY executed a Memorandum of Agreement for a new CBA (the "Memorandum of Agreement"). The Memorandum of Agreement incorporated a proposal for a $1,000 minimum salary increase contained in the Mediator's Proposal of December 1998 (the "Mediator's Proposal") [Cross-motion Exh. C, p.7, ¶39]. This Memorandum of Agreement was ratified by the Nassau County Legislature and the membership of the CSEA by April of 1999. According to plaintiffs, the September 11, 2000 date is significant only insofar as it is the date that the printed version of the 1998-2002 CBA, which "embodied" the Memorandum of Agreement, was signed. Plaintiffs assert that the Memorandum of Agreement was binding upon execution, and that the parties were operating under the Memorandum of Agreement (not the expired Prior CBA), as of February of 1999. Therefore, according to plaintiffs, even if the Triborough doctrine applied, the Prior CBA remained in effect only until February of 1999, and not until September of 2000.

Second, and moreover, plaintiffs argue that the Triborough doctrine does not apply, based upon the express language in Section 25-5 of the 1998-2002 CBA which makes the $1,000 Minimum Provision retroactive to January 1, 1999. Plaintiffs argue that the language of the agreement is clear and unambiguous, and that the parties freely negotiated and agreed to such retroactive benefit. To deny retroactivity would effectively deprive plaintiffs of the benefit of their bargain. Plaintiffs note that, insofar as the Memorandum of Agreement was fully executed on February 17, 1999, the period of retroactivity was only 1½ months, which in plaintiff's view, did not impose an onerous burden upon the COUNTY to recalculate salaries for employees promoted during that period.

The Court is persuaded that the Memorandum of Agreement operated as a successor CBA (replacing the Prior CBA) from the date it became effective until the ratification of the final 1998-2002 CBA in September of 2000. See, e.g., Wappingers Central School District v. Wappingers Congress of Teachers, 51 AD2d 766 (applying the terms of a memorandum of agreement which had been executed in the gap between prior and successor collective bargaining agreements). The Court notes that an agreement (such as the Memorandum of Agreement) between a public employer and an employee organization is a binding contract under Civil Service Law. See Civil Service Law § 201(12). That contract is effective for the period set forth therein, except as to any provisions which require approval by a legislative body. As to those provisions, the contract becomes binding upon ratification by the legislative body. Id.

In this case, setting aside the issue of retroactivity, it is not clear when the Memorandum of Agreement became binding with respect to the proposed $1,000 minimum salary increase. [*5]The Memorandum of Agreement states, in Paragraph (1), that the Mediator's Proposal is accepted "in principle ... subject to further agreement relative to certain employees at certain County health-related facilities; further agreement on final contract language; ratification under the CSEA process; and ratification by the Nassau County Legislature." Based upon this language, it appears that the provision for a $1,000 minimum salary increase may have become binding upon ratification of the Memorandum of Agreement in April, rather than upon execution in February.

The Court need not belabor the matter, however, nor consider the COUNTY's argument that a breach of the Memorandum of Agreement was not properly plead or timely raised in the cross-motion. The Court finds that the retroactive effective date of the $1,000 Minimum Provision, as set forth in Section 25-5 of the1998-2002 CBA, supersedes the above issues, and resolves the question of when promotional placements became subject to the $1,000 Minimum Provision. New York courts have long accepted the principle that, in some circumstances, parties to a contract may bind themselves retroactively. See, e.g., Matter of Faculty Ass'n of Suffolk Community College v. Public Employment Relations Board, 125 AD2d 307; Matter of Local Union 1567, Int'l Brotherhood of Electrical Workers, AFL-CIO v. Orange and Rockland Utilities, Inc., 104 AD2d 413. Courts are willing to give retroactive effect particularly where the retroactive provision or contract embodies a prior oral agreement, or amends a prior agreement, or fills a gap between a prior and a current contract. See, generally, Debreceni v. Outlet Co., 784 F.2d 13, 18-19, and cases cites therein.

The retroactive provision here is of the sort generally approved by the Courts, as indicated in Debreceni, supra. Furthermore, the language of Section 25-5 of the1998-2002 CBA making the $1,000 Minimum Provision retroactive to January 1, 1999, is unambiguous and unequivocal. There is no basis or support for the proposition that the parties intended otherwise or did not agree to be bound thereby. (Arbitrator Scheinman's refusal to include calendar year 2000 in the June 16, 2003 Award has no bearing on the parties' intent, and shall be discussed below as it pertains to the issue of res judicata.)

The Court finds that the COUNTY has breached Section 25-5 of the1998-2002 CBA. It follows that the appropriate remedy, and the only way to give effect to the parties' agreement, is to require the COUNTY to review and recalculate all step and/or grade placements for promotions made during calendar years 1999 and 2000. The COUNTY's position that, notwithstanding the COUNTY's express agreement on retroactivity, the COUNTY is not required to go back and adjust salaries calculated during the applicable period, is untenable and without authority. To hold otherwise would render the parties' agreement nugatory.

Res Judicata and Untimeliness

The COUNTY argues, alternatively, that dismissal of the action is warranted based upon Arbitrator Simmelkjaer's determination in CA Grievance 49-04 and Individual Grievance 50-04 that the grievances were not arbitrable on the grounds of res judicata and untimeliness. Arbitrator Simmelkjaer found that the res judicata effect of the June 16, 2003 Award, particularly [*6]Arbitrator Scheinman's refusal to include calendar year 2000 within the relief granted, barred any subsequent grievance predicated on the subject of promotions prior to 2001. Arbitrator Simmelkjaer also found that the subject grievances were untimely, insofar as they were filed well beyond the contractual time limitations. In view of the prior arbitration of identical claims in CA Grievance 64-01, Arbitrator Simmelkjaer rejected CSEA's arguments that the violations were either unknown to the aggrieved employees or constituted separate continuing grievances that were not subject to the earlier determination.

The issues raised require a brief review of the grievance procedures set forth in the CBA. First, individual grievances must be filed within four (4) calendar months after the occurrence of the event grieved or after the employee should have known of its occurrence. Grievances brought on behalf of the Union (CSEA) may be brought within one (1) calendar year of the event grieved. [Section 23-1] After proceeding through Steps 1 - 3 of the grievance procedure, an aggrieved who remains unsatisfied may proceed to Step 4, which, in this case, consisted of an Advisory Grievance Arbitration. [Section 23-1.4] The advisory grievance arbitrator must issue written findings of fact and recommendations for resolving the grievance, but makes no binding determination. [Section 23-1.4(b)(5)] In Step 5, the arbitrator's recommendation is submitted to the County Executive for consideration. If the County Executive takes no action on a grievance within forty-five (45) days after receiving the recommendation, "recommendations which were in favor of the aggrieved shall become binding upon the County." [Section 23-1.5] Neither the Union nor any individual employee may initiate any legal action which is related to any matter within the definition of a grievance, "until and unless such grievance has timely proceeded through each step hereinabove set forth, and has been finally determined at Step 5." [Section 23-2]

CSEA asserts (and the COUNTY does not deny) that the arbitrators' recommendations in CA Grievance 64-01, CA Grievance 49-01 and Grievance 50-01 were submitted to the County Executive and that he took no action within 45 days after submission. Accordingly, pursuant to the express terms of the CBA, only those portions of the arbitrators' determinations that were favorable to the CSEA became binding. Thus, Arbitrator Scheinman's determination in the June 15, 2003 Award, that the COUNTY's method for calculating salaries upon promotion violated the CBA, is binding upon the COUNTY. Plaintiffs report that this portion of the June 15, 2003 Award was confirmed by Court order in an Article 75 proceeding brought by CSEA. As to those recommendations that were unfavorable to the CSEA and the individual aggrieved, they remain advisory only. Thus, the Court is free to consider whether the COUNTY breached the CBA with respect to promotions occurring in calendar years 1999 and 2000, and whether or not the grievances that are the subject of this lawsuit were timely brought.

The determinations of Arbitrator Scheinman and Arbritrator Simmelkjaer on those issues carry no res judicata effect, and the Court is free to consider the issues de novo.

With respect to the issue of timeliness, it is useful to distinguish, at the outset, between the timeliness of the lawsuit and the timeliness of the grievances. It is clear that the instant lawsuit is timely. The limitations period for a breach of contract action is six (6) years. CPLR [*7]§213. Regardless of when the COUNTY's alleged violations of the CBA occurred, plaintiffs were prohibited by the terms of the CBA from suing upon such violations until they exhausted the grievance procedure set forth in Section 23-1. [See CBA Section 23-2.] Thus, their legal cause of action could have accrued no earlier than the date upon which Step 5 was completed by the County Executive taking no action on Simmelkjaer's recommendations; that is, 45 days after March 7, 2006. Plaintiffs commenced this action on April 11, 2006. The action, therefore, cannot be considered untimely under the CPLR statute of limitations. If anything, the commencement of the action was ten days premature under the CBA. The COUNTY has not raised this issue, however, and the Court deems it waived. To the extent that this early commencement breached the CBA, the breach was de minimus and inconsequential.

The subject matter of the instant lawsuit corresponds to the subject matter of CA Grievance 49-04 and Individual Grievance 50-04. Although these grievances are not directly before this Court, the timeliness of these grievances is nonetheless relevant to these proceedings in light of CBA Section 23-2. As noted above, that section provides that no lawsuit on any matter related to a grievance may be filed "until and unless such grievance has timely proceeded through each step" in the grievance procedure (emphasis supplied). Thus, it appears from the above language that the filing of a timely grievance is a condition precedent to legal action. Although the Court is not bound by Arbitrator Simmelkjaer's finding that CA Grievance 49-04 and Individual Grievance 50-04 were untimely, the Court's own finding that the grievances were untimely might bar recovery herein.

The question is academic, however, insofar as the Court does not find that the grievances were untimely. As stated above, grievances must be filed within one year (by CSEA) or four months (by the individual employee) of the event aggrieved. CA Grievance 64-01 alleged that the COUNTY violated Section 25-5 of the CBA by failing to place employees in the proper step upon promotion, and sought correction of the placements retroactive to the day of promotion. Arbitrator Scheinman sustained this grievance and thereby its timeliness. Insofar as his determination is binding upon the COUNTY, the COUNTY cannot, and does not, argue that CA Grievance 64-01 was untimely. CA Grievance 64-01 was not, on its face, limited to violations occurring after any particular date, and covered all incorrect placements occurring after the retroactive effective date of Section 25-5, including those that are the subject of the later grievances. As shown in the chronology set forth earlier in this decision, the scope of the recovery arising from CA Grievance 64-01was not determined until June 7, 2004, when Arbitrator Scheinman issued a letter clarifying the June 16, 2003 Award. Only then did it become known that employees promoted in calendar years 1999 and 2000 would be treated differently from those promoted in 2001 and thereafter. CA Grievance 49-04 and Individual Grievance 50-04 were filed within the following month.

For purposes of determining the timeliness of CA Grievance 49-04 and Individual Grievance 50-04, fairness dictates that contractual limitations period be measured from the date of the June 7, 2004 clarification letter. It is unreasonable to expect the union or employees promoted in 1999 and 2000 to have filed separate grievances any earlier, while the union's CA [*8]Grievance 64-01 was still pending or the scope of recovery thereunder was still undetermined.

Conclusion

The Court finds that this action is not barred by res judicata or untimeliness. The Court finds further that the COUNTY has breached Section 25-5 of the 1998-2002 CBA to the extent that it improperly placed employees promoted in calendar years 1999 and 2000 in the incorrect step/grade on the relevant graded salary schedule. Accordingly, the COUNTY is obligated to review and recalculate step/grade placements made during this period. The Court has considered the remaining arguments of the parties and finds them to be without merit. Based upon the foregoing, it is

ORDERED, that the COUNTY's motion for summary judgment pursuant to CPLR §3212 is denied; and it is further

ORDERED, that CSEA's cross-motion for summary judgment pursuant to CPLR §3212 is granted.

This constitutes the Order of the Court. Settle judgment on notice.

Dated: ___________________________________________________

J.S.C.