Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v District Council 37, AFSCME, AFL-CIO

[*1] Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v District Council 37, AFSCME, AFL-CIO 2005 NY Slip Op 52068(U) Decided on December 15, 2005 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2005
Supreme Court, New York County

In the Matter of Patrolmen's Benevolent Association of the City of New York, Inc. and the Sergeants' Benevolent Association of the City of New York, Petitioners,

against

District Council 37, AFSCME, AFL-CIO, City of New York and the Police Department of the City of New York and Maurice C. Benewitz, as Arbitrator in the Referenced Matter, Respondents.



117494/04

Appearances: Corporation Counsel appeared by Joanna Helferich

District Council 37 appeared by Eddie Demmings and Mary O'Connell



Michael D. Stallman, J.

Petitioners Patrolmen's Benevolent Association of the City of New York (PBA) and Sergeants' Benevolent Association of the City of New York (SBA) bring this special proceeding, pursuant to CPLR 7511 (b) (1) (i), 7511 (b) (1) (iii), and 7511 (b) (2) (ii), for an order and judgment vacating the arbitration award dated September 2, 2004.

Respondent District Council 37, AFSCME, AFL-CIO (District Council 37), cross-moved pursuant to CPLR 7511 and 7514, for an order dismissing the petition, confirming the award, and directing that judgment be entered pursuant to CPLR 7514. The respondent the City of New York and the Police Department (City) cross-moved, pursuant to CPLR 404, 3211, and 7511, for an order dismissing the petition.[FN1]

BACKGROUND

The respondent City employs police administrative aides who perform clerical and administrative duties for the Police Department. Respondent District Council 37 is a labor organization representing the administrative aides. Pursuant to the collective bargaining agreement, District Council 37 and the City submitted a grievance to an arbitrator. The collective bargaining agreement defined the term "grievance" as including: [*2] any employee who claims to be aggrieved by an alleged assignment of any City employee, whether within or without the collective bargaining unit, to clerical duties which are stated in the aggrieved employees' job specifications but are substantially different from the duties stated in the job specifications for the title held by such other City employee.

In a decision dated September 2, 2004, the arbitrator found that the City violated the collective bargaining agreement by assigning clerical and administrative work to full-duty police officers. The award ordered the Police Commissioner to cease and desist from assigning clerical duties to police officers, and to forthwith assign administrative aides to perform those duties. The petitioners, labor organizations representing police officers, were not parties to the arbitration.

In support of the petition, petitioners assert inter alia the parties to the arbitration, District Council 37 and the City have coinciding interests, and engaged in an arbitration proceeding that deprived the petitioners of substantial rights without notice or an opportunity to participate. They allege that the arbitrator improperly redefined the job titles of those individuals in petitioners' bargaining units, without providing the petitioners with the opportunity to participate in the proceedings. They claim that the affected work falls within the bargaining unit work of police officers. They dispute the arbitrator's authority to rule that the petitioners' members were performing out of title work, unless the petitioners were parties to the proceeding. Petitioners allege that the New York City Office of Collective Bargaining's Board of Collective Bargaining has exclusive jurisdiction for determining trade line jurisdiction disputes. They contend that the arbitrator violated public policy by failing to join a necessary party, and that, by excluding a necessary party, and by issuing a finding that did not fully resolve the controversy, the award was so imperfectly executed that a final and definite award was not made. Finally, the petitioners argue that: thousands of police officers are likely to be displaced after years of service in their positions; their unions will lose membership; and the City stands to save $100 million because of the salary difference between uniformed police personnel and clerical workers.

Respondents District Council 37 and the City contend that the petitioners lack standing; the award should be confirmed, as the arbitrator did not exceed his power; the award is final, definite, has a rational basis, and is not violative of public policy; District Council 37 has a contractual right to prevent the City from assigning, for a substantial portion of their work day, clerical tasks to full-duty police officers; the petitioners do not have a legally cognizable right, or interest, in full-time clerical assignments; the New York City Board of Collective Bargaining has previously held that the City may reassign police officers from desk jobs, and had the right to so hold.

I

Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which must be considered at the outset of any litigation (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9 [1975]). Standing requires from the outset that a party show a stake in the resolution of litigation (Matter of International Assn. of Bridge, Structural and Ornamental Ironworkers, Local Union No. 6, AFL-CIO v State of New York, 280 AD2d 713 [3d Dept 2001]; Matter of New York State Assn. of Professional Land Surveyors v State of New York Dept. of Labor, 167 AD2d 735 [3d Dept 1990]). For purposes of ruling on a motion to dismiss for want of standing, the Court must accept as true all material allegations of the pleading, and must construe [*3]the petition in favor of the complaining party (Warth v. Seldin, 422 US 490 [1975]). The burden of establishing standing to raise a claim is on the party seeking review (Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 769 [1991]).

The starting point for analysis must be the language of the statute itself (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]). CPLR 7511 (b) (2) authorizes a "party who neither participated in the arbitration nor was served with a notice of intention to arbitrate" to make an application to vacate if the court finds that: (i) the rights of that party were prejudiced by one of the grounds specified in paragraph one; or(ii) a valid agreement to arbitrate was not made; or(iii) the agreement to arbitrate had not been complied with; or(iv) the arbitrated claim was barred by limitation under subdivision (b) of section 7502.

Here, the petitioners neither participated in the arbitration, nor were they served with a notice of intention to arbitrate. Therefore, by the language of the statute, the petitioners would have standing to bring an application to vacate the award only if they could either urge the same grounds as under subdivision 7511 (b) (1), or state the threshold questions which may be earlier raised in the manner provided on an application to compel or stay arbitration.

The petitioners assert that they have standing under Association of Contracting Plumbers, Inc. v Local Union 2, 841 F2d 461 (2d Cir. 1988) where the United State Court of Appeals for the Second Circuit allowed a parent union, the United Association, which had not been a party to an arbitration, to intervene for the purposes of bringing a motion to vacate, because the parent union had a substantial interest in the arbitration under Federal Rules of Civil Procedure Rule 24 (a). The court indicated that one of the primary reasons for the United Association's existence was to avoid trade line jurisdiction disputes between the local unions. The court vacated an arbitration award, relating to a jurisdictional dispute between the plumbers and the pipefitters locals, in circumstances where the arbitration was held without participation by the parent United Association. The plumbers' local unions notified their respective employer associations that, pursuant to a decision of the United Association, they could not perform certain assigned work which the United Association had determined was within the pipefitters' jurisdiction. Furthermore, the collective bargaining agreements purported to supercede any contrary provision of the United Association's constitution, and stated that, in the event of a conflict, the "[a]greement shall be controlling" (Association of Contracting Plumbers, 841 F.2d at 465). Despite the specific contract language, the court vacated an arbitration award that resolved a question of work jurisdiction. The court wrote that the parent union's "[c]onstitution is paramount to the individual collective bargaining agreements of its members ... [and] [t]he collective bargaining agreements are subject in all respects to decision of jurisdictional questions by the United Association" (citations omitted id. 6). The court further held that where labor unions provide, through a parent organization, an orderly means of resolving jurisdictional disputes among themselves, there is a strong public interest in recognizing the authority of the parent union (id. at 468). Under the federal statute, which also provides that a party to the arbitration may vacate an award, the Second Circuit held that parent unions had standing as intervenors to challenge an arbitration award, even though they were not parties to the arbitration, [*4]and were not technically bound by the award, because the awards prevented the parent union from exercising its constitutional right to establish work jurisdiction among its local unions (id. at 466-67).

Here, there is no relationship between the petitioners and District Council 37 approaching the relationship between the parent and the subsidiary unions found in Association of Contracting Plumbers v Local Union No. 2 (supra). On the contrary, the petitioners and District Council 37 are distinct, separate unions. If the petitioners believe their members have a contractual right to be assigned administrative work, they would have to assert it in the appropriate forum. In the subject arbitration underlying this proceeding, the arbitrator found that District Council 37's contract with the City requires that the City assign administrative work to the administrative aides covered by the agreement. The arbitrator had jurisdiction to resolve the dispute between the parties to the collective bargaining agreement. The decision by the arbitrator is fully supported by the language of the subject collective bargaining agreement. Thus, under CPLR 7511 (b) (2) (i), the rights of the petitioners were not prejudiced by one of the grounds specified in paragraph one of CPLR 7511.

Moreover, the law in New York is clear that, where a union and an employer have an arbitrable controversy under a collective bargaining agreement, an arbitration award may be vacated only at the instance of one of those two parties (Chupka v Lorenz-Schneider Co., 12 NY2d 1 [1962]; Matter of Soto (Goldman), 7 NY2d 397 [1960]). The arbitrator did not have statutory authority to permit a non-party to the collective bargaining agreement to intervene; neither does this Court. Therefore, the petitioners do not have statutory standing to challenge the arbitration award.

II

Petitioners have also failed to establish common-law standing independent of the statutory standing which may be conferred by CPLR 7511 (b). Common-law standing to challenge an administrative determination requires a "show[ing] that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected" (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, supra). The unions must allege and show that their members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action, of the sort that would make out a justiciable case had the members themselves brought suit (see Warth v Seldin, 422 US 490 [1975]).

In the instant matter, there has been no demonstration of individualized harm befalling any union member, a required showing to establish standing on behalf of a union member (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406,413 [1987]), and unless its members have standing, petitioners may not claim standing as the members' organizational representatives (Matter of Dental Socy. of State of New York v Carey, 61 NY2d 330 [1984]). The petitioners' bald, unsupported allegations that thousands of police officers are likely to be displaced, that the police unions will lose membership and that the City stands to save $100 million, fail to satisfy the threshold requirement of standing to maintain this proceeding. The injury is too speculative to give rise to a cognizable interest (Matter of MFY Legal Servs. v Dudley, 67 NY2d 706, 708 [1986]).

III

An arbitration award may be vacated on the following three narrow grounds: (1) it violates a strong public policy; (2) it is irrational; or (3) it clearly exceeds a specifically enumerated limitation [*5]on the arbitrator's power (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]; Matter of Board of Educ. of Arlington Central School Dist., 78 NY2d 33 [1991]). Judicial restraint under the public policy exception is particularly appropriate in arbitrations pursuant to public employment collective bargaining agreements (Matter of 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 [2003]). In fact, the strong public policy of this State "prefers arbitration as a device for the resolution of labor controversies and frowns upon judicial attempts to resolve such disputes"(Board of Education, Bellmore-Merrick Central High School District v Bellmore-Merrick United Secondary Teachers, Inc., 39 NY2d 167, 171 [1976]). Moreover, the strong public policy, and deeply ingrained, generally assumed practice in New York, favors arbitration of grievances and other contract disputes between the parties to the contract as provided in their contract, here between the City and a public employee union. The law provides for this kind of jurisdictional dispute between unions to be resolved before the Board of Collective Bargaining. Petitioners seek to have this Court usurp the Board's jurisdiction and ignore well-established prior holdings. Moreover, petitioners seek to change well-settled labor and contract principles and disrupt the currently-understood relationship between the City, the unions and their members. In determining whether or not an arbitrator exceeded the scope of his or her authority under the arbitration provision in a collective bargaining agreement, it is not for the courts to interpret the substantive conditions of the contract, or to determine the merits of the dispute. (See Matter of 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 supra).

Contrary to the petitioners' contention, the arbitrator's determination was within his power and was not irrational.

Finally, the petitioners' assert that this matter must be referred to the New York City Board of Collective Bargaining which has exclusive jurisdiction in the underlying dispute. However, the Court lacks the power to refer an application to reject or confirm an arbitration to an administrative agency, or ask it for an advisory opinion. This Court has exclusive subject matter jurisdiction of this proceeding; the Board of Collective Bargaining has no power to entertain it or issue an advisory opinion.[FN2] Moreover, the Board of Collective Bargaining has repeatedly ruled against the petitioners, finding that civilianization is a management prerogative (see District Council 37's Exhibit "C").

CONCLUSION

Accordingly, it is

ORDERED that the petitioners' motion to vacate the award is denied; and it is further

ORDERED that the respondents' cross motions to dismiss the petition and confirm the award are granted and the arbitrator's award dated September 2, 2004 is confirmed; and it is further

ADJUDGED that the proceeding is dismissed. [*6]

This constitutes the decision and judgment of the Court.

Dated: December 15, 2005ENTER:

New York, New York s/

___ _________________________________

J.S.C.

Footnotes

Footnote 1: By order dated July 13, 2005, this Court directed that answers be filed and gave the parties an opportunity for further briefing of the issues.

Footnote 2: Petitioners arguments, phrased in terms of fairness and notice, redolent of due process language, initially appear seductively appealing. Under further analysis, they lack merit and appear somewhat contradictory. Not only does current law provide ample opportunity for such disputes to be fairly and extensively litigated on notice to all affected unions; petitioners themselves are parties to contracts with arbitration provisions that also presuppose that outsiders will not be entitled to intervene.