Fourth Department Confirms Arbitration Award for Fired Crossing Guard
In Matter of Town of Greece Guardians’ Club, Local 1170 (Town of Greece), 2018 NY Slip Op 08775 (4th Dep’t Dec. 21, 2018), the grievant was employed by the Town of Greece as a school crossing guard. She was a member of Communications Workers of America (CWA), Local 1170.
The collective bargaining agreement (CBA) between CWA Local 1170 and the Town contained a management rights provision that included the right “to suspend, dismiss, or discharge for cause.” In April 2015, the Town’s chief of police called the grievant to a meeting in his office and promptly terminated her for misconduct without providing her with prior notice of the charges against her. The chief of police testified at the arbitration hearing that he made the decision to terminate her before meeting with her.
Significantly, the Town conceded that the grievant was entitled to notice and a hearing pursuant to Civil Service Law § 75, and that it failed to comply with that statute.
The grievant sought arbitration per the terms of the CBA. In his opinion and award, the arbitrator noted that the CBA allowed the Town to terminate the grievant “for cause,” which is synonymous with the term “just cause,” and that just cause encompasses some degree of due process.
The arbitrator further determined that the grievant’s termination fell short of the requirements of due process for three reasons. First, the termination letter that the chief of police provided to the grievant at their meeting was broadly worded and failed to provide her with notice of the charges against her. Second, the grievant was not given an opportunity to respond to the charges of misconduct before the chief of police made the decision to terminate her. Third, the chief of police did not conduct a full and fair investigation inasmuch as he failed to interview a key witness to the alleged misconduct, the grievant herself. For those reasons, the arbitrator concluded that the grievant “was not provided even rudimentary due process therefore her termination must be found to be without just cause,” and sustained the grievance.
The trial court vacated the award for three reasons, all of which were reversed by the Fourth Department. First, the trial court found the arbitrator exceeded a limitation on his power when he determined that the grievance was arbitrable. The Fourth Department found that even if the trial court was correct that the issue of arbitrability was not before the arbitrator, the Town conceded on appeal that the grievance was arbitrable. Thus, even assuming, arguendo, that the arbitrator exceeded a limitation on his power, the Court found that the Town was not prejudiced by his determination.
Second, the trial court held that the arbitrator exceeded a limitation on his power by adding a substantive provision that was not included in the CBA. The trial court noted, in particular, the absence of a stand-alone article in the CBA pertaining to employee discipline. The Fourth Department concluded that the “for cause” language contained in the management rights provision expressly circumscribed the Town’s right to discipline or discharge the grievant, and the arbitrator acted within his authority in interpreting and applying the CBA.
Finally, the trial court determined that the arbitrator’s award was irrational. The Fourth Department enumerated that the court must confirm the award where the arbitrator offers “even a barely colorable justification for the outcome reached.” The Court held that the arbitrator issued a thoughtful, well-reasoned opinion and award, which he based on the hearing testimony of the chief of police and the undisputed evidence in the record. Therefore, the Court determined that the award was not irrational, and reversed the holding of the trial court.
Trial Court Reversed in Hamburg Zoning Case
In Matter of Johnson v Town of Hamburg, 2018 NY Slip Op 08820 (4th Dep’t Dec. 21, 2018), Glenn Wetzl applied to the Town Board of Hamburg to rezone a parcel of land to allow the construction of a clustered patio-home project. The Town Board approved the application, and the petitioners commenced an Article 78 proceeding seeking to annul the Town Board’s determination.
The trial court found for the petitioners. On appeal, the Fourth Department addressed each of the petitioners’ four causes of action.
With respect to the petitioners’ first cause of action, the Fourth Department found that the Town Board did not violate Article 8 of the Environmental Conservation Law. The Court found that the Town Board properly classified the project as an unlisted action, which, unlike a Type I action, does not carry a presumption that the project is likely to have a significant adverse impact on the environment. Further, the Town Board provided a sufficient explanation of the basis for its determination, which allowed for effective judicial review.
Concerning the petitioners’ second cause of action, the Fourth Department held that the Town Board properly referred the matter to the Erie County Department of Environment and Planning for review in compliance with General Municipal Law §239-m, and the Department’s failure to issue a recommendation within 30 days of receipt of a full statement of such proposed action permitted the Town Board to make a final determination on the rezoning application under General Municipal Law § 239-m[b].
On the third cause of action, the Court held that the petitioners failed to demonstrate that a “clear conflict” existed between the Town’s comprehensive plan and the rezoning determination.
The fourth cause of action alleged that the Town did not give proper notice of the public hearing required by Town Law §264. The Court noted that the rezoning application announced a public hearing on the adoption of an amendment to the Town’s Zoning Code with respect to a specified “29.29 acres of vacant land” rather than the 24.24 acres actually under consideration. The Fourth Department concluded that based on the applicable standard of review, there was nothing in the record supporting the trial court’s conclusion that a member of the public could reasonably have been misled by the erroneous description of the acreage and thereby caused to forego attending the public hearing.
Accordingly, the decision of the trial court was unanimously reversed, and the Town’s granting of the zoning application was reinstated.
Twenty-Year Employee Entitled to Vested Benefits from City
In Timkey v City of Lockport, 2018 NY Slip Op 08792 (4th Dep’t Dec. 21, 2018), the plaintiff was hired by the City of Lockport to a position in the City’s Water Department. In December 2007, the City promoted the plaintiff to a supervisory position, where he was represented by the Civil Service Employees Association (CSEA). In 2008, the plaintiff left the City’s employ and began working for Niagara County. In 2016, plaintiff requested that the City provide him medical benefits based on the relevant collective bargaining agreements (CBAs) between the City and AFSCME and between the City and CSEA. The City refused, and the plaintiff commenced an action for breach of contract and seeking a judgment declaring that the City is required to provide plaintiff with medical benefits.
At the trial court, the plaintiff moved for summary judgment, and the City opposed the motion and cross-moved for summary judgment seeking a declaration that it was not required to provide plaintiff with medical benefits. The trial court granted the plaintiff’s motion, denied the City’s cross-motion, and declared that the City was obligated to provide plaintiff with medical benefits under the AFSCME CBA.
On appeal, the Fourth Department stated, “As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement. However, rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement, and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right.”
The Fourth Department held that the trial court properly determined that the plain meaning of the provisions at issue in the AFSCME CBA established that the plaintiff had a vested right to medical benefits, those rights vested when he completed his 20th year of service with the City, and that the plaintiff became eligible to receive said benefits when he reached retirement age. The Fourth Department affirmed the holding of the trial court.
Reckless Disregard Standard of Care Applies to Authorized Emergency Vehicle Engaged in Emergency Operation
In Flood v. City of Syracuse, 2018 NY Slip Op 07869 (4th Dept. 2018), the plaintiff sought damages for injuries she sustained as a result of a motor vehicle accident. At the time of the accident, the plaintiff was traveling behind Jeremy L. Baldwin, a police officer with the City of Syracuse, at an undetermined distance.
Baldwin attempted to make a U-turn in order to pursue a suspect. Before attempting the U-turn, Baldwin checked his mirrors and saw no vehicles behind him. Baldwin then made an abrupt left and his vehicle collided with the plaintiff’s vehicle. According to the plaintiff, Baldwin only activated his overhead lights after the collision.
Due to the fact that Baldwin was operating an “authorized emergency vehicle” and “was engaged in an emergency operation “ at the time of the accident, his conduct was exempted from the rules of the road by virtue of Vehicle and Traffic Law §1104(b)(4). As such, Baldwin could only be held liable under the reckless disregard standard of care.
The Fourth Department held that the evidence submitted established that Baldwin’s conduct before attempting to make the U-turn “did not rise to the level of reckless disregard for the safety of others, i.e., he did not act with conscious indifference to the consequences of his actions. Therefore, the trial court was reversed and summary judgment was granted in favor of the defendants.
Reckless Disregard Standard of Care applies to Snowplow Operator
In Clark v. Town of Lyonsdale, 2018 NY Slip Op 07870 (4th Dept. 2018), plaintiff sought damages for injuries he sustained when the vehicle in which he was operating was struck by the wing blade of a snowplow operated by Edward Farr, who was employed by the Town of Lyonsdale.
The Fourth Department held that defendants established as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the accident. Plaintiff’s evidence that the plow blade was up at the time of the accident did not raise a question of fact since the plaintiff did not dispute the fact that Farr was “working his run or beat at the time of the accident.”
Therefore, defendant Farr was exempted from the rules of the road unless he acted with reckless disregard for the safety of others. Such a standard of care requires proof that the individual acted with “conscious disregard of a known or obvious risk that [was] so great as to make it highly probable that harm [would] follow.”
The Fourth Department held as a matter of law that the evidence submitted by defendants established that Farr’s conduct did not rise to the level of recklessness. In opposition to the motion, the Fourth Department noted that the plaintiff, at best, established that Farr did not see the plaintiff’s vehicle and a portion of the snowplow crossed the centerline. Such conduct, however, does not amount to recklessness.
Although the plaintiff and Farr had different accounts of how the accident happened, these differences alone did not create a question of fact on the issue of reckless disregard warranting a denial of the summary judgment motion. Therefore, the trial court was reversed and the plaintiff’s complaint was dismissed.