Matter of City of Rochester v Rochester Police Locust Club

[*1] Matter of City of Rochester v Rochester Police Locust Club 2007 NY Slip Op 52393(U) [18 Misc 3d 1103(A)] Decided on November 26, 2007 Supreme Court, Monroe County Polito, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2007
Supreme Court, Monroe County

In the Matter of City of Rochester, ROCHESTER POLICE DEPARTMENT, Petitioner,

against

Rochester Police Locust Club, Respondent.



07/11566



THOMAS S. RICHARDS, Corporation Counsel

YVETTE CHANCELLOR GREEN, ESQ., of Counsel

Attorney for Petitioner

Office and P.O. Address

400A City Hall, 30 Church Street

Rochester, NY 14614

TREVETT CRISTO SALZER & ANDOLINA, P.C.

LAWRENCE J. ANDOLINA, ESQ., of Counsel

Attorney for Respondent

Office and P.O. Address

Two State Street, Suite 1000

Rochester, NY 14614

William P. Polito, J.

Relief Requested: [*2]

This dispute was submitted by the parties to binding arbitration pursuant to the Collective Bargaining Agreement (CBA) between the City of Rochester (City) and The Rochester Police Locust Club, the bargaining unit for police officers, sergeants, lieutenants, and captains (Association). The arbitrator's factual findings, determination and rationale is dated June 4, 2007 and attached to the movant's petition as Exhibit C.

The movant City seeks to set aside the arbitrator's determination as exceeding his authority, being totally irrational, against public policy and exceeding the scope of the judicial issues raised by the grievance.

The Association responds that the determination is not totally irrational, against public policy, without authority, or exceeds the grievance issues, and seeks to confirm the award.

Decision:

The petition and the cross motion are denied without prejudice as interlocutory and not yet final.

Facts:

The specific issue presented to Arbitrator Melchick was: "Did the City violate Article 15 of the Collective Bargaining Agreement when it changed the selection protocol for special events? If so, what shall the remedy be?".

The City argued before the arbitrator that Article 27, Section 4(E) limits the authority of the Arbitrator to interpreting and applying "the express provision of the agreement" and that he cannot add, change or subtract therefrom. The parties did not otherwise limit the powers of the arbitrator to decide the issue in controversy.

Substantively, the City's main argument before the arbitrator was that Draft General Order 265 was not an agreement between the parties, despite being followed for at least seven years (since 1999), because it was not in final [*3]form. The City, in the alternative, argued that even if Order 265 was applicable, the Chief of Police had authority to totally disregard the process, specifications and allocution, and to appoint on-duty officers at will of his choice. The City based its position upon the language contained in Par. J of the General Order 265: "Nothing in this order precludes the Chief of Police from utilizing on-duty personnel for special events activities."

That reservation is contained in paragraph J at the end of the protocol for selecting personnel at special events. It is also followed by a further qualifying sentencing: "Notwithstanding the provisions of the selection process contained in this order, selection of personnel for specific events may be at the discretion of the Special Events Coordinator with reasonable explanation."

The arbitrator found in favor of the Association and against the City on the specific issues submitted and the related sub issues raised, and addressed by both parties before the arbitrator, as follows:

1. Whether Draft General Order 265 is a "contractual understanding" between the parties although not finalized—(it has since been finalized and adopted by the parties).

2. Whether the City had violated Draft General Order 265 based upon its staffing of only on-duty police officers at two special events at Frontier Field on August 17 and September 6, 2006.

The arbitrator detailed his rationale for each of his aforesaid determinations, and determined that Article 15, Section 6 of the CBA between the parties incorporates General Order 265 for Special Events Overtime, notwithstanding it being designated a "draft" in 1996. The arbitrator also considered the parties past practices in interpreting General Order 265 in finding that it was violated.

Petitioner's Contentions:

Although the City unsuccessfully contested at the [*4]arbitration hearing that General Order No.265 was not a contractual part of its Collective Bargaining Agreement, it has conceded the same here (Deputy Chief Markert's affidavit #18).

Instead, it seeks to set aside the arbitrator's ruling on the basis that it is totally irrational and outside the scope of his authority and/or the agreement since it fails to consider and apply the plain meaning of the said language, which it believes is to allow the Police Chief sole and unfettered discretion in any and all circumstances to totally disregard and bypass the selection process as set forth in the agreement, and to appoint at will on-duty officers. Further, that the arbitrator determined issues which were not arbitrable or justiciable within the grievance:

viz. - whether the selection of the Commanding Officer of Special Events is a joint selection process

- whether the staffing recommendation of the Commanding Officer of Special Events to the Department (or Chief), if disputed, is arbitrable.

Law and Rationale:

Partial Determination

The arbitrator has ruled that if the petitioner elects to staff a "special event", ie, baseball games at Frontier Stadium, it is obligated to follow the agreed protocol of Order 265, which requires notification to the designated Commanding Officer of Special Events to prepare submissions to the Deputy Chief of recommended volunteer on-duty and/or off-duty officers to staff the event in accordance with the agreed rules of seniority. The Deputy Chief is then to review the recommendation for the ultimate issuance of an order by the Police Chief. (Decision pg 16).

The arbitrator ruled that the staffing of the event by the Police Chief without seeking such recommendations was a violation of that agreed protocol. (Decision pg 12, 16). Here the Chief directed the Deputy Chief to order the Commanding Officer not to submit staff recommendations (Dec. pg 5).

Having found such violation, the arbitrator directed [*5]the matter back to the parties to complete the selection process in accordance with the protocol in order to determine which officers lost wages, and the amounts thereof. In the event of any disagreement in that process, the dispute is to be resubmitted to him for resolution. (Decision pg 17).

As to the first part of the arbitrator's decision, given the location of the reservation of authority to the Chief at the end of the protocol process, it is not irrational for the arbitrator to determine that such authority did not yet come into play.

However, to the extent that the arbitrator appeared to resolve disputes which had not yet been raised in the second part of the process, they are not effective. (Dec. pg 11). Until that second process occurs, those past resolutions under Section 265 alluded to by the arbitrator are not decisions in this case, and not reviewable. If those disputes actually occur, then both sides will have full opportunity to submit their positions back to the arbitrator for resolution. For instance, if there is no dispute in the selection of a Commanding Officer of Special Events (as has been the case in the past - Decision pg 5, 13), or if only off-duty officers are submitted by the Commanding Officer of Special Events (as sometimes has been the case in the past - decision pg. 6,11), or if after submission the Deputy Chief (or Chief) does not dispute such recommendations, (as has almost always occurred in the past - decision pg 12, 14), there will be no need to resolve those issues. Until there is a justiciable grievance, the references to past conduct are only advisory and not within the scope of the arbitrator's authority. If no dispute arises in the second portion, then the first portion of the determination can be submitted to this Court as a final determination for confirmation, or reviewable by this Court, if contested.

However, if disputes do occur in the second part of the process, the parties will have the opportunity to state their position and the basis thereof for the arbitrator's determination, which will then be subject to Court review. Also, if at that later stage, the Chief elects to stand on the said reservation of authority language, the arbitrator may need to interpret its meaning under the circumstance and [*6]for the reasons asserted along with the effect, if any, of the subsequent qualifying sentence.

Although there are occasions where the arbitrator's award can eliminate steps of the grievance process and still be final for adjudicatory review purposes, ( Westmoreland Central School District v. Board of Education, 58 AD2d 228, (4th Dept., 1977)) that situation is not present here, as the award is interlocutory and is not co-extensive with the submissions (Mobil Oil v. Asamera Oil, 43 NY2d 276, (1977)). The first part of the grievance is resolved, but the issues which may necessarily be raised in the second part are not. The anticipatory resolution of possible disputes prematurely prevents a full opportunity of both sides for input in order for the arbitrator to make his determination. Such piece meal process ultimately delays the review of the full resolution. Importantly, is the court's lack of authority to resolve a non final determination. Accordingly, both the request to set aside and the request to confirm are denied without prejudice.

It is also not clear whether the agreed modification of General Order 265, which has occurred since the dispute, has rendered any of the prospective determinations to be moot.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the petitioner is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED.

Dated this 26th day of November, 2007 at Rochester, New York.

______________________________

Hon. William P. Polito

JUSTICE SUPREME COURT