Opinion
402418/09.
Decided March 22, 2010.
Cindy E. Switzer, Esq., Michael A. Cardozo, Corp. Counsel of the City of New York, New York, NY, for petitioners.
Peter D. DeChiara, Esq., Cohen, Weiss Simon LLP, New York, NY, For respondents.
By notice of petition dated September 24, 2009, petitioners move pursuant to CPLR 7511(b) for an order vacating the arbitrator's award in the matter of the arbitration between City Employees 237, IBET v The City of New York, et al. Respondents oppose the petition and, by notice of cross-motion dated December 22, 2009, move for an order confirming the award.
I. UNDISPUTED FACTS
Pursuant to an agreement reached in May 2000, petitioners and District Council 37 entered into a Citywide Collective Bargaining Agreement (agreement) governing the terms and conditions of employment for certain employees of the City of New York, including School Safety Agents (SSAs), and providing for arbitration of certain disputes. (Petition dated Sept. 24, 2009 [Petition], Exh. A). Article V, section 10 of the agreement, the "assault leave" provision, provides, in pertinent part:
Upon the determination by the head of an agency that an employee has been physically disabled because of an assault arising out of and in the course of the employee's employment, the agency head will grant the injured employee a leave of absence with pay not to exceed eighteen (18) months. No such leave with pay shall be granted unless the Workers' Compensation Division of the Law Department (Division) advises the head of the agency in writing that the employee's injury has been accepted by the Division as compensable under the Worker's Compensation Law, or if such injury is not accepted by the Division as compensable under such law, unless the Worker's Compensation Board (Board) determines that such injury is compensable under such law.
If an employee is granted a leave of absence with pay pursuant to the Section, the employee shall receive the difference between the employee's weekly salary and the employee's compensation rate without charge against annual leave or sick leave . . . The injured employee shall undergo such medical examinations as are requested by the Division and the employee's agency, and when found fit for duty by the Board shall return to the employee's employment.
( Id.).
In sum, the agency must: (1) determine whether an employee has been disabled as a result of an assault arising from or in the course of the employee's employment, and (2) grant the injured employee a paid leave of absence of up to 18 months. However, as a condition precedent to granting such leave, the agency must receive from the Division written notice that the injury has been accepted by the Division as compensable under the Worker's Compensation Laws or, if the injury is not accepted as compensable by the Division, the Board must determine that it is compensable. The employee must undergo such medical examinations as requested by the Division and the agency, and must return to his or her employment upon being found fit for duty by the Board. ( Id.).
Section 11 of Article V is identical to section 10 except that it governs injuries other than those resulting from an assault and provides for extended sick leave with pay not exceeding three months after all of the employee's sick leave and annual leave balances have been exhausted.
Finally, pursuant to Article XV, section two of the agreement:
The arbitrator's decision, order or award shall be limited to the application and interpretation of this Agreement, and the arbitrator shall not add to, subtract from or modify this Agreement. The arbitrator's award shall be final and binding and enforceable in any appropriate tribunal in accordance with Article 75 of the Civil Practice Law and Rules.
( Id.).
On November 14, 2007, respondent Renada Braan, an SSA employed by the New York City Police Department (NYPD), was injured when she was pushed by a student into a metal door. ( Id., Exhs. C, E). After the incident, Braan was taken to the hospital and released with a note excusing her from work and physical activity for three days. ( Id., Exh. D). Braan did not report to work on November 17, 2007.
On November 30, 2007, Braan provided a sworn statement to the Staten Island Family Court in a proceeding against the student who pushed her. ( Id., Exh. E). Sometime between November 2007 and March 2008, based on its determination that Braan's injury did not result from an assault, the NYPD granted Braan leave with pay through December 27, 2007 pursuant to section 11 of the agreement rather than granting her assault leave pursuant to section 10. (Petition, at 5). It also determined, based on medical reports, that Braan was not physically disabled after December 27 and thus could have returned to work thereafter. ( Id., at 6).
On March 17, 2008, Braan, through the City Employees Local 237 (union), filed a grievance challenging the NYPD's denial of assault leave. ( Id., Exh. B). After receiving no response at Step I of the grievance process, the union filed a Step II grievance. By letter dated May 16, 2008, the NYPD's Office of Labor Relations (OLR) denied the Step II grievance "based on investigation by this office and the Medical Division's review of the medical documentation provided by the [grievant] on April 17, 2008." ( Id.).
By letter dated May 14, 2008, the union requested a Step III hearing. After a Step III conference held on July 30, 2008, an OLR review officer denied the grievance, affirming the NYPD's determination that Braan had not been disabled due to an assault and that based on its medical practitioner's opinion, she was no longer physically disabled. ( Id.).
On July 3, 2008, the Board issued a decision in Braan's workers' compensation case, directing the NYPD to pay her workers' compensation benefits from November 15, 2007 to December 27, 2007 and from December 27, 2007 to March 25, 2008 at $447.20 per week, and from March 25, 2008 to July 3, 2008 at $265 per week. ( Id., Exh. F). While the Board did not expressly determine whether Braan was eligible for assault leave, it apparently found that she was not fit to return to work until after July 3, 2008.
On or about September 11, 2008, the union filed a request for arbitration to decide the issue of "whether the [NYPD] violated Article V, Section 10 of the [agreement] by improperly disapproving [Braan's] request for a Section 10 Sick Leave Grant." ( Id., Exh. C).
By letter dated January 22, 2009, Braan learned that the student who pushed her had been found guilty of assault in the second degree and sentenced to probation for 18 months. ( Id., Exh. G).
On May 6, 2009, the arbitration hearing was held. ( Id., Exh. C). The union argued that the assault leave provision permits the NYPD to determine only whether an employee's injury has been caused by an assault, and that once the Board grants the employee worker's compensation benefits, only the Board may determine when the employee is fit to return to work. The NYPD argued that it, not the Board, has the authority to determine the length of leave based on its own independent medical analysis. The sole issue before the arbitrator was whether the NYPD properly determined when Braan was fit to return to duty.
By determination dated June 22, 2009, the arbitrator sustained the grievance, finding that the NYPD improperly decided that Braan was fit to return to work on December 2007. ( Id., Exh. C). The arbitrator also found as follows, in pertinent part:
Sections 10 and 11 [of the agreement] direct, and do not merely permit, the [NYPD] to provide [a certain amount of leave]. Both sections use the word "will" rather than the word "may": "upon determination by the agency that an employee has been physically disabled . . . the agency will grant . . ." (Emphasis added). The use of the word "will" can mean nothing other than a denial of discretion: once an agency or department finds that an employee has become physically disabled as a result of an assault or on-the-job injury not caused by employee fault, the agency must grant a leave . . .
The City argues, however, that the Agency has the discretion not only to determine whether the employee is physically disabled in the first instance, but also to determine the appropriate duration of such leave. Such an interpretation, however, makes little sense, and is belied by the language of the provision. That language requires a finding that the employee "has been" disabled in the prescribed manner (by an assault or on-the-job injury), a finding made in this case . . .
Nowhere does the CBA language suggest that the agency is to have a role in determining whether an employee "continues to be" disabled and, indeed, the language of both Sections 10 and 11 is to the contrary — committing to the [Division] that determination by giving it the authority to determine whether an employee is fit to return to work . . .
( Id.).
The arbitrator concluded that:
The contractual language instead expressly commits to the [Division] — an independent agency set up to and experienced in evaluating disability — the responsibility to make determinations about the degree and duration of disability, rather than the agency or department whose budget may be affected or which may have other interests at stake. The use of the mandatory language "will grant" strongly suggests an intention to ensure against the understandable tendency of agencies to lean in the direction of protecting their and the City's budgets or other needs. Any other interpretation would render the language requiring the employee to return to duty when found fit by the Division superfluous, since [it] makes fitness for duty [determinations] in all worker's compensation cases and there would be no need to mention them if they were not connected in some way to the leaves with pay provided in Sections 10 and 11. The plain intent of both sections is that once the [Division] determines fitness, the employee must return and the leave with pay must cease.
( Id.).
II. CONTENTIONS
Petitioners argue that the arbitrator, in deciding the grievance, eliminated or limited the NYPD's right to approve or disapprove assault leave grants and added a provision conferring the Board with original jurisdiction to determine an employee's eligibility for assault leave. (Petitioners Memo. of Law, dated Nov. 20, 2009). Petitioners thus contend that the arbitrator exceeded her power by effectively modifying or creating a new agreement in contravention of the authority granted to her which is limited to the application and interpretation of the agreement. ( Id.).
They, moreover, argue that as the NYPD has exercised its right to conduct medical examinations for years and has established a Medical Board specifically to determine whether employees are eligible for medical leave, and as the agreement permits the NYPD to make an initial determination as to whether the employee is eligible for an assault grant, the arbitrator irrationally concluded that the NYPD has no right to determine when the employee is fit to return to work. They observe that because the Board may take several months to decide a case, an employee's leave may be disproportionately extended. ( Id.).
Petitioners also assert that the award violates public policy by removing the NYPD's authority to determine when an employee may return to work, thereby negating the power granted to it pursuant to Administrative Code § 12-307(b) to direct its employees, maintain the efficiency of government operations, and determine the methods, means, and personnel by which its operations are conducted. The NYPD's inability to manage its workforce, they maintain, will adversely impact its duty to provide security and safety to the public. ( Id.).
Respondents deny that the award is irrational, as the arbitrator's decision is based on express language in the agreement and supported by sound reasoning. (Respondents' Memo. of Law, dated Dec. 16, 2009). They deny that the agreement gives the NYPD the exclusive authority to determine initially whether to grant assault leave to an employee, or that it is irrational to grant the NYPD the authority to make an initial but not a subsequent determination. Rather, they argue, the agreement so provides. ( Id.).
Respondents also maintain that petitioners offer no evidence that the Board takes an inordinate amount of time to decide cases, and that in any event, petitioners can recoup any overpayments. They also contend that petitioners failed to establish that the NYPD has a long-standing practice of making medical determinations, and that even if it did, it was not irrational for the arbitrator to enforce the agreement's plain language. ( Id.).
Respondents deny that the award violates public policy as petitioners did not establish that any constitutional, statutory or common law prohibits the Board from determining whether an employee is fit for work or the arbitrator from ruling that the Board had the sole authority to make such a determination. ( Id.). They deny that Administrative Code § 12-307(b) is applicable or that petitioners may rely on it to establish a public policy violation. ( Id.).
In reply, petitioners allege that the arbitrator's mistakes in referencing the Board and the Division evidence her confusion of their respective roles, and that her confusion resulted in her erroneous determination. (Petitioners' Reply Memo. of Law, dated Dec. 31, 2009).
III. ANALYSIS A. Applicable law
The scope of judicial review of an arbitration proceeding is extremely limited ( Matter of Campbell v New York City Tr. Auth. , 32 AD3d 350 [1st Dept 2006]), and the court must give deference to the arbitrator's decision ( Matter of New York City Tr. Auth. v Transp. Workers' Union of Am., Local 100, AFL-CIO , 6 NY3d 332 ). In reviewing an award, the court is bound by the arbitrator's factual findings and interpretations of the agreement at issue ( Matter of Brown Williamson Tobacco Corp. v Chesley , 7 AD3d 368 [1st Dept 2004]), and may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." ( Matter of New York State Correctional Officers and Police Benev. Assn., Inc. v State of New York, 94 NY2d 321).
Pursuant to CPLR 7511(b)(iii), an arbitration award may be vacated if, as pertinent here, the arbitrator "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made." An award will not be vacated on this ground unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's power. ( New York City Tr. Auth. v Transp. Workers Union of Am., Inc., Local 100, et al., NY3d, 2010 NY Slip Op 01378 [2010]; Matter of Silverman, 61 NY2d 299). Even if the arbitrator, in interpreting the agreement, "misconstrues or disregards its plain meaning or misapplies substantive rules of law," the award may not be vacated. ( Matter of Silverman, 61 NY2d 299). "In short, an arbitration award cannot be vacated if there exists any plausible basis for it." ( Matter of Brown Williamson Tobacco Corp., 7 AD3d at 372).
Finally, if a motion to vacate an arbitration award is denied, the court must confirm the award. (CPLR 7511[e]).
B. Is the award irrational?
An award is "rational" if "any basis for [its] conclusion is apparent to the court" ( Caso v Coffey, 41 NY2d 153), and may be found irrational only if there is no proof to justify it ( Matter of Jadhav v Ackerman , 62 AD3d 797 [2d Dept 2009]). An award is irrational if the arbitrator gives a construction to the parties' agreement that effectively rewrites it, or rewrites a collective bargaining agreement by adding a provision not negotiated by the parties. (5 NY Jur 2d, Arbitration and Award § 227 [2010]). While the arbitrator may consider the parties' past practice in interpreting the agreement, she may not rely on it to the extent of bypassing the express language of the agreement so as to make the practice an implied part of the agreement. ( Id.; Matter of New York City Tr. Auth. v Patrolmen's Benev. Assn. of New York City Trans. Police Dept., 129 AD2d 708 [2d Dept 1987], lv denied 70 NY2d 719). The party moving to vacate an arbitrator's award as irrational has the burden of establishing its irrationality by clear and convincing evidence. (5 NY Jur 2d, Arbitration and Award § 227; Muriel Siebert Co., Inc. v Ponmany, 190 AD2d 544 [1st Dept 1993]).
Here, the arbitrator quoted and analyzed the provision without looking beyond its four corners or giving a new definition or meaning to any of its terms. In interpreting the plain language of the provision and deciding whether the NYPD properly determined when Braan was fit to return to duty, she did not create a new provision that was not bargained for by the parties ( See Matter of Sullivan, County of (Civil Serv. Empls. Assn.), 271 AD2d 920, 921 [3d Dept 2000] [arbitrator did not exceed her limitations as she merely looked at four corners of document and interpreted ambiguous phrase in agreement]; Goldberg v Thelen Reid Brown Raysman Steiner LLP, 25 Misc 3d 1205[A], 2007 WL 6889357 [Sup Ct, New York County 2007] [arbitrator considered plain meaning of operative words and discussed them]), and the basis of her decision is readily apparent and supported by the proof before her.
Petitioners, on the other hand, focus on the first part of the sentence ("the injured employee shall undergo such medical examinations as are requested by the [Division] and the employee's agency") in arguing that the provision gives the NYPD the right to determine when an employee may return to work, and fail to consider the balance of the sentence ("and when found fit for duty by the [Board]") which clearly reposes in the Board sole authority to determine the employee's fitness for duty.
Petitioners' argument that the decision is inconsistent to the extent that the arbitrator acknowledged the NYPD's exclusive authority to make an initial determination as to whether to grant such leave while failing to acknowledge its ability to make a subsequent determination as to when the employee is able to return to work, is based on an interpretation of the provision that is not supported by its text which clearly conditions the granting of assault leave by the NYPD on a determination by either the Division or the Board that the injury is compensable. Nowhere in the arbitrator's decision nor in the provision itself is the NYPD given the sole authority to grant assault leave.
That petitioners disagree with the arbitrator's construction of the provision does not prove that the decision is irrational. ( See Maross Constr. v Cent. New York Regional Transp. Auth., 66 NY2d 341, 346 [arbitrator's interpretation of contract may not be challenged even if she disregarded apparent or plain meaning of terms]; Matter of Natl. Cash Register Co. [Wilson], 8 NY2d 377, 383 [mere fact that different construction could have been accorded provisions and different conclusion reached does not mean that arbitrators so misread provisions as to empower court to set aside award]; Eighty Eight Bleecker Co., LLC v 88 Bleecker St. Owners, Inc. , 51 AD3d 507 [1st Dept 2008] [lease agreement could have been reasonably construed as arbitrator construed it]).
While the arbitrator's determination that only the Board may decide when an employee is fit to return to work may thereby render superfluous the part of the provision requiring that the employee be examined by the Division and the employee's agency, her construction does not diverge from the text. In any event, that an arbitrator's decision may render another provision superfluous does not prove that the decision irrational. ( See Assoc. Musicians of Greater New York, Local 802 v League of Am. Theatres and Producers, Inc., NYLJ, Nov. 8, 2006, at 26, col 3 [SD NY] [petitioners' argument that decision rendered other paragraph in agreement superfluous was really attempt to argue different interpretation of agreement]; Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO , 15 AD3d 748 , 750 [3d Dept 2005] [reversing lower court's decision vacating arbitration award which was based on finding that arbitrator's interpretation rendered meaningless other subsection of paragraph at issue]; Matter of Shanker, 151 AD2d 798 [3d Dept 1989], lv denied 75 NY2d 896 [reversing court's determination that arbitrator's rationale made paragraph meaningless and that award should thus be vacated]).
Moreover, petitioners' argument that the arbitrator irrationally restricted the NYPD's authority to determine an employee's ability to return to work and thereby exceeded her authority to interpret the agreement was raised and rejected in Matter of Albany County Sheriff's Local 775 of Council 82, AFSCME, AFL-CIO, 63 NY2d 654 (1984). There, the respondents argued that the arbitrator, in deciding whether an employee was properly found unfit for work, restricted the authority of a third physician to resolve a dispute between the parties' physicians to less than what was conferred by the agreement and thus exceeded her authority to interpret it. The Court rejected the argument, finding that it was "nothing more than a challenge to the substance of the arbitrator's contract interpretation, which . . . is foreclosed." ( Id. at 656).
That the NYPD has a long-standing practice of conducting its own medical examinations, likewise, does not render the arbitrator's decision irrational, and it has been held that an arbitrator may not consider past practices to the extent of bypassing express provisions in an agreement. ( See eg Matter of New York City Tr. Auth., 129 AD2d at 708 [arbitrator improperly found violation of agreement by interpreting parties' past practices rather than terms of agreement]). In any event, the NYPD's prior practice of conducting medical examinations is irrelevant to the issue of whether the agreement gives it the right to determine when an employee may return to work.
Finally, the arbitrator's mistaken references to the Board and Division are apparent typographical errors.
As the agreement gives the NYPD the authority only to determine whether an injury resulted from an assault and to require the employee to undergo medical examinations, as it specifically provides that assault leave may not be granted unless either the Division or the Board accepts the injury as compensable, and as it gives the Board the sole authority to determine whether the employee is fit for duty, petitioners have not sustained their burden of proving by clear and convincing evidence that the arbitrator's decision is irrational. ( See Matter of Local 342, Long Is. Pub. Serv. Empls. v Town of Huntington, 195 AD2d 467 [2d Dept 1993] [plain language of agreement supported arbitrator's conclusion]).
C. Does the award violate public policy?
When a dispute has been submitted to binding arbitration, "an award that is not clearly in violation of public policy should be given effect." ( Hackett v Milbank, Tweed, Hadley McCloy, 86 NY2d 146). While an award may be vacated if it violates public policy, the public policy at issue must be strong, well-defined, and embodied in constitutional, statutory or common law, and must prohibit a particular matter from being decided or certain relief from being granted by an arbitrator. (5 NY Jur 2d, Arbitration and Award § 226). The focus is on the award itself, and an award may be found to violate public policy only if: (1) the arbitration agreement itself violates public policy; (2) the award interferes in areas reserved for others to resolve; or (3) the award violates an explicit law because of its reach. ( Matter of New York State Correctional Officers and Police Benev. Assn., Inc., 94 NY2d at 327).
In addition, an award may not be vacated on public policy grounds unless it is clear on its face that public policy precludes its enforcement. (5 NY Jur 2d, Arbitration and Award § 226). In other words, the court must be able to examine an award on its face, without engaging in extensive fact-finding or legal analysis, and determine that it may not be enforced on the ground that it violates public policy. ( Matter of Sprinzen, 46 NY2d 623).
The courts . . . must exercise due restraint in this regard, for the preservation of the arbitration process and the policy of allowing parties to choose a nonjudicial forum, embedded in freedom to contract principles, must not be disturbed by courts, acting under the guise of public policy, wishing to decide the dispute on its merits, for arguably every controversy has at its core some issue requiring the application, or weighing, of policy considerations.
( Id. at 631).
Moreover, "judicial restraint under the public policy exception to the otherwise broad power of parties to arbitrate their disputes is particularly appropriate in arbitrations held pursuant to public employment collective bargaining agreements." ( Id.; Matter of New York City Tr. Auth. v Transp. Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 7). Finally, the scope of the public policy exception is extremely narrow. ( Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO. v Bd. of Educ. of City School Dist. of City of New York , 1 NY3d 72 , 80).
Petitioners do not allege that the arbitration agreement itself violates public policy or that the subject of the arbitration could not or should not have been determined by the arbitrator. Thus, the only public policy ground at issue is whether the award violated an explicit law because of its reach. Here, petitioners allege only that the arbitrator's decision violated Administrative Code § 12-307(b), which provides that:
It is the right of the city, or any other public employer, acting through its agencies, to determine the standards of services to be offered by its agencies; determine the standards of selection for employment; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work. Decisions of the city or any other public employer on those matters are not within the scope of collective bargaining, but, notwithstanding the above, questions concerning the practical impact that decisions on the above matters have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.
In Matter of New York City Tr. Auth. v Transp. Workers Union of Am., Local 100, AFL-CIO, the parties' agreement permitted arbitration of employee discipline issues, and the petitioner argued that the arbitrator's decision as to the appropriate disciplinary measures for two employees violated the general statutory powers granted to the petitioner pursuant to the Public Authorities Law (PAL) to manage, control and direct the operation of transit facilities for the convenience and safety of the public. ( 99 NY2d at 8). The Court rejected the argument, finding that the PAL provision did not, by virtue of imposing a duty to manage public transportation for the public's safety and convenience, provide any requirements or standards governing the imposition of employee discipline. Thus, it held that the arbitrator did not violate the PAL provision by deciding how the employees should be disciplined. ( See also Matter of New York State Correctional Officers and Police Benev. Assn., Inc., 94 NY2d at 327 [court may not vacate award "when vague or attenuated considerations of a general public interest are at stake"]).
Here too, Administrative Code § 12-307(b) gives the NYPD the right to direct its employees, maintain the efficiency of governmental operations, and exercise complete control and discretion over its organization. Nothing within it, however, prohibits an arbitrator from deciding whether assault leave was properly granted or denied or which entity has the authority to determine when an employee is fit to return to work.
Moreover, in similar situations, courts have held that Administrative Code § 12-307(b) does not embody a public policy capable of being violated by an arbitration award. ( Matter of Local 333, United Mar. Div., Intl. Longshoreman's Assn., AFL-CIO v New York City Dept. of Transp. , 35 AD3d 211 [1st Dept 2006], lv denied 9 NY3d 805 [arbitrator's award reinstating employee after he was terminated pursuant to zero tolerance policy did not violate public policy embodied in administrative code]; Matter of City of New York v Sanitation Officers Assn., Local 444, SEIU, AFL-CIO, 13 Misc 3d 1240[A], 2006 NY Slip Op 52189[U] [Sup Ct, New York County 2006] [nothing in administrative code prohibited arbitrator from determining contractual meaning of term "supervision"; general right of petitioners to regulate employment did not set forth specific duties or standards for supervision]).
Finally, there is nothing in the award that reflects, on its face, that its enforcement violates public policy.
For all of these reasons, petitioners have failed to establish any ground upon which the arbitrator's award violates any public policy.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that the petition seeking an order vacating the arbitrator's award is denied; and it is further
ORDERED, that the cross-motion for an order confirming the award is granted.
This constitutes the decision and judgment of the court.