Matter of Rochester Police Locust Club Inc. v City of Rochester

[*1] Matter of Rochester Police Locust Club Inc. v City of Rochester 2008 NY Slip Op 52695(U) [25 Misc 3d 1213(A)] Decided on June 19, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 19, 2008
Supreme Court, Monroe County

In the Matter of the Application of the Rochester Police Locust Club, Inc., Petitioner,

against

City of Rochester, Respondent.



08/5404



APPEARANCES:TREVETT CRISTO SALZER & ANDOLINA P.C.

LAWRENCE J. ANDOLINA, ESQ., of Counsel

Attorneys for Petitioner

Office and P.O. Address

Two State Street, Suite 1000

Rochester, NY 14614

CITY OF ROCHESTER LAW DEPARTMENT

THOMAS RICHARDS, ESQ.

YVETTE C. GREEN, ESQ., of Counsel

Attorneys for Respondent

Office and P.O. Address

30 Church Street, Room 400A

Rochester, NY 14614

William P. Polito, J.

The underlying dispute was submitted by the parties to binding arbitration pursuant to the Collective Bargaining Agreement (CBA) between the City of Rochester and The Rochester Police Locust Club, the bargaining unit for police officers, sergeants, lieutenants, and captains (Locust Club). The arbitrator's factual findings, determination and rational dated December 20, 2007 is attached to movant's petition as Exhibit A.

The movant, the Association seeks to confirm the award pursuant to CPLR 7510.

The City responds that the arbitrator exceeded his authority and that he so imperfectly executed his authority that he failed to submit a final and definite award.

Decision:

The arbitrator's decision is vacated and the matter remanded for reconsideration.

Facts:

The arbitrator summarized the issue presented as: "Did the City violate Article 11, Section 1(E) of the parties' Agreement by seeking to utilize the Preferred Care Comprehensive Plan ("PCCP") as a replacement for the Blue Choice Extended Plan ("Blue Choice Extended"). If so, what shall the remedy be?"

The CBA for the period of July1, 2005-June 30, 2008 covering health care benefits sets forth under Article 11, Section 1—Hospital and Surgical Health Benefits:

A. Employees hired prior to July 1, 2000, may choose from the following plans:

1. The Blue Cross/Blue Shield Plan plus the Blue Million Rider, the $5 deductible Prescription rider and the 80/20 X-Ray Blue Shield Rider. The City agrees to provide coverage comparable to the prior 120-day Maternity Services Rider and the Paid-in-Full Obstetrical Services Rider for members of the Unit. This benefit may be provided through a plan or plans other than Blue Cross and/or Blue Shield provided that the benefit remains substantially equivalent. However, as of the date of this Award, only those unit members who are already enrolled in the Blue Million Plan, as described above, will be eligible to continue coverage with the Blue Million Plan. In addition, unit members with [*2]30 or more years of service by October 1, 2007, may elect to enroll in the Blue Million Plan during a special enrollment period that will take place prior to that date. As of October 1, 2007, the Blue Million Plan will thereafter be closed to new enrollees.

2. The Blue Choice Extended Plan

3. The Blue Choice Select Plan

4. The Preferred Care Comprehensive Plan

5. The Preferred Care Community Plan

6. Blue Choice Value

7. Preferred Care Opportunity

E. Except as provided in Article 11, Section 1(A)(1), the employer has the right to replace any health insurance plan or rider that is offered to members of the unit with a plan or rider that, when considered as a whole, is substantially similar to the plan or rider being replaced. The Employer shall consult with the Union regarding the contemplated change(s) in plan or rider. If the Union disagrees with the City's determination that a proposed change in plan or rider is substantially similar, the Union may file a grievance pursuant to Article 27 of this Agreement, utilizing an expedited process as directed by the Contract Arbitrator. In the event the Union grieves, no change(s) shall occur until the Contract Arbitrator has rendered a final determination on the matter. The Union will not unnecessarily delay the expedited review process.

In or about August 2007 the City was notified by Excellus Blue Cross/Blue Shield that the Blue Choice Extended Plan would be eliminated effective January 1, 2008. The City, to no avail, objected to Excellus's unilateral decision to end the plan. On October 5, 2007, the City notified the Locust Club that the Blue Cross Plan (No.2) would be eliminated, and the members enrolled in that plan would be moved to the Preferred Care Comprehensive Plan effective January 1, 2008 which the City maintained the plan

provided substantially similar benefits.

The Locust Club grieved the City's determination arguing before the arbitrator that the City's failure to offer an additional separate substitute plan substantially similar resulted in a breach of Article 11. The Locust Club submitted that the use of the word [*3]"replace" in Article 11 Section 1(E) required the City to offer a new separate plan in place of the eliminated Blue Choice Extended Plan, thus maintaining seven (7) total plans the members could choose from. The Locust Club alternatively argued that the Preferred Care Plan was not substantially similar to the Blue Choice Plan.

The City argued and currently maintains that the Preferred Care Plan is substantially similar to the discontinued Blue Cross Plan, that they consulted with the Locust Club regarding the Plan change and are in compliance with their contractual obligations. The City further asserts, which has not been disputed, that adding an additional substantially similar plan is an impossibility as no carrier will provide the replacement of the cancelled coverage as a separate plan.

The Arbitrator agreed with the Locust Club, not on whether the plan change was substantially similar, but, irrespective of a substantially similar plan or rider, the City violated the agreement since they did not "replace" the discontinued plan with another separate substantially similar choice, thus maintaining seven choices of plans for its members. The Arbitrator did not decide the issue of impossibility to provide a separate similar plan nor, despite having the City submit the summary plan comparison sheets make a determination as to whether the Preferred Care Comprehensive Plan was substantially similar to the discontinued Blue Choice Extended Plan. The Arbitrator stated, "In view of this conclusion, (that the City violated the contract based upon its failure to "replace" the discontinued plan) the Arbitrator finds the question of whether or not the PCCP is substantially similar to the Blue Choice Extended to be moot". (Decision dated 12/20/07, Page 11).

The arbitrator further determined,

In the interim, and understanding that the elimination of the Blue Choice Extended Plan is a matter beyond the control of the City, the City is directed to allow those members currently enrolled in the Blue Choice Extended Plan to enroll in any of the currently remaining five plans until such time as a replacement plan which is "substantially similar" is obtained to replace the Blue Choice Extended Plan. During such interim period, any out of pocket expenses incurred by those unit members previously enrolled in the Blue Choice Extended Plan shall be reimbursed in full by the City. (Decision page 11)

Law and Rationale:

Arbitrator's Authority: [*4]

An arbitration award may be vacated if it " clearly exceeds a specifically enumerated limitation on the arbitrator's power'". (Matter of the Arbitration between Manhattan and the Bronx Surface Transit Operating Auth. and Transport Workers Union of America, 227 AD2d 995, (4th Dept., 1996)).

Article 27(4)(B)(E) sets forth:

B. Decision of the arbitrator shall be final and binding on the Club, the City and any grievant, provided said decision is within the scope of his authority and the constraints established by this section. The arbitrator shall have no authority or power to render a decision or award inconsistent with Statutory or Appellate decisional law.

E. The authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written. The arbitrator shall confine himself to the precise issue submitted for arbitration and shall have no authority or power to determine any other issues not submitted to him. He shall confine his decision and award solely to the interpretation and application of this Agreement.

Here, the dispute arises under the contract language stating "the employer has the right to replace any health insurance plan or rider that is offered to members of the unit with a plan or rider that, when considered as a whole, is substantially similar to the plan or rider being replaced. The Employer shall consult with the Union regarding the contemplated change(s) in plan or rider. If the Union disagrees with the City's determination that a proposed change in plan or rider is substantially similar, the Union may file a grievance pursuant to Article 27 of this Agreement, utilizing an expedited process as directed by the Contract Arbitrator". (Emphasis Added).

The City maintains and this Court agrees that the Arbitrator's decision, under the contractual expedited process, finding a breach of contract on the basis that the City failed to "replace" the discontinued plan with a separate and additional plan, rather than on whether the other plan provided was substantially similar, exceeded his authority. The City further contends that the Arbitrator did not have the authority, nor did the contract permit under the expedited process, a determination of whether the contract was violated by the City's failure to replace the discontinued policy with a separate and additional policy. The City submits that issue should have only been decided under the regular arbitration process which provides for a full hearing with presentation of evidence, witnesses under oath and cross examination under CPLR 7506 and Article 27 of the CBA wherein the issue of impossibility of performance could have been fully presented. Also, [*5]the agreement does not literally read on its face that replacement of a plan with a rider is prohibited, or that the 7 categories must be maintained only by 7 separate plans.

The Union's position that pursuant to the Court of Appeals decision in Silverman v. Cooper, 61 NY2d 299, (1984), the City waived their right to object since they did not object to the issue presented to the arbitrator, that is, "Did the City violate Article 11, Section 1(E) of the parties' Agreement by seeking to utilize the Preferred Care Comprehensive Plan ("PCCP") as a replacement for the Blue Choice Extended Plan ("Blue Choice Extended"). If so, what shall the remedy be?", is distinguishable.

The City's consent to the issue proposed anticipated that the question would be interpreted in accordance with contract limitation for expedited resolution ie. whether the two plans or rider were substantially similar, and if not, determine interim relief. The arbitrator's broader interpretation was not reasonable under the limitations specified in the contract for an expedited resolution. The expedited hearing process allows only the narrow issue of whether the replacement plan or rider, "when considered as a whole, is substantially similar to the plan or rider being replaced", (underlining added), and not whether the City had violated the CBA by not replacing the discontinued plan with a separate additional plan. That latter issue could be resolved under the normal grievance arbitration process, where broader contract issues will need to be asserted or developed, including the City's right to assert impossibility of performance if a separate plan was required, as well as proof of why a separate plan as being contested here is more beneficial than the same coverage in one of the other plans.

Since the Arbitrator passed over as moot the specific narrow issue which he had the authority to decide under the expedited process set forth in the CBA, that is, whether the replacement plan or rider was "substantially similar", he exceeded his authority and did not resolve the issue submitted to him. Further, by failing to make any comparison between the offered coverage, and the eliminated plan, it is difficult to understand how the arbitrator could forge, or the Court review, a proposed remedy that did not first evaluate, identify, and meet the deficiencies of the new plan or rider, if any.

Accordingly, the arbitrator's decision is vacated and the matter remanded for reconsideration on an expedited basis whether the Preferred Care Comprehensive Plan is substantially similar to the discontinued Blue Choice Extended Plan. (Buffalo Police Benevolent v. City of Buffalo, 82 AD2d 635, (4th Dept., 1981), and further as submitted by the parties if its not substantially similar, "what the remedy should be". If petitioner believes that the City is in breach of the contract by failing to add a wholly new plan and to always retain seven separate plans, then they may file a grievance for arbitration subject to the general provisions of the CBA.

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 [*6]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 respondent 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 19th day of June, 2008 at Rochester, New York.

______________________________

Hon. William P. Polito

JUSTICE SUPREME COURT