Opinion
Index 64526/2021
01-05-2022
CITY OF YONKERS, Petitioner, For a Judgment Vacating an Arbitration Award Pursuant to CPLR7511 v. YONKERS POLICE BENEOLENT ASSOCIATION, on behalf of LINDA RIOS-DALY, Respondents.
Unpublished Opinion
DECISION AND ORDER
HON. ALEXANDRA D MUKPHY, J.S.C.
In a special proceeding pursuant to CPLR Article 75 to vacate an arbitration award dated July 28, 2021, the petitioner moves to vacate the arbitration award granting their grievance in part and reduced the penalty imposed:
Papers Considered
NYSCEF Doc. No. 1-11
1. Notice of Petition/Petition/Exhibits A-D/Memorandum of Law;
2. Memorandum of Law in Opposition;
3. Memorandum of Law in Reply.
Factual and Procedural Background
The petitioner City of Yonkers and the respondent Yonkers Police Benevolent Association are parties to a collective bargaining agreement (CBA) governing the discipline of union members.
The respondent Linda Rios-Daly was an active-duty police officer having joined the Yonkers Police Department in 2011. In February 2013, she was injured in the line of duty and placed on medical leave.
All Yonkers police officers are subject to the Yonkers Police Department Policy and Procedure Manual (PPM). The rules of conduct for the Yonkers Police Department are set forth in PPM 120-01. All police officers are required thereunder to know and comply with all department rules, regulations, policies and procedures (NYSCEF Doc. 5, PPM 120-01 at 1). In addition, police officers are required to promptly report any change of name, address or telephone number by completing a personnel file update form.
Medical leave procedures are set forth in PPM 130-14. The Medical Control Unit (MCU) is responsible for monitoring members of the Yonkers Police Department that are sick, injured or disabled. All sick or injured members are placed under the supervision of the MCU and remain assigned to their regular tour of duty. For the duration of their absence, members must remain at their residence as listed in the official roster during their regular duty hours except for authorized reasons. Members are also subject to home monitoring during their scheduled tour, which may include onsite residence checks. Any member who is unable to remain at their residence must contact the MCU. Further, members who are injured or disabled may leave their residence for a maximum of three hours per day for specific designated reasons. Prior to leaving their residence, members must contact the MCU.
On or about January 8, 2021, the Yonkers Police Department issued a notice of discipline to Officer Daly asserting the following violations:
1) On December 7, 2020, respondent violated PPM 130-14 by failing to notify the MCU that she would not be at her residence during her scheduled tour;
2) On December 22, 2020, respondent violated PPM 120-1 by failing to attend a scheduled independent medical examination (IME);
3) On December 26, 2020, respondent violated PPM 130-14 by failing to notify the medical control unit that she would not be at her residence during her scheduled tour; and
4) On December 26, 2020, respondent violated PPM 130-14 by failing to notify the MCU of a change of address and failing to arrange an authorized address for monitoring.
Due to the foregoing violations, the City disciplined the respondent by issuing a suspension without pay for sixty days.
Arbitration Hearing
An arbitration hearing took place on May 17, 2021, before Lisa Pollack, the arbitrator. The issue presented to the arbitrator was whether the City violated the CBA by suspending Officer Daly.
The City claimed that Officer Daly violated PPM 120-1 and 130-14 by failing to advise the Yonkers Police Department of her updated address, failing to appear for an IME on December 22, 2020, failing to remain at her residence subject to monitoring during work hours and failing to request permission to be outside her residence on two occasions in December 2020.
The Union admitted that Officer Daly was not present at her residence on December 7, 2020 and December 26, 2020 and that she failed to attend the IME scheduled for December 22, 2020. The Union did not deny that Officer Daly did not update her residence information with her employer. The Union claimed that Officer Daly did not knowingly or intentionally violate the PPM. Officer Daly complied with the rules and regulations from 2013 though 2019. In June 2019, after Officer Daly submitted disability retirement papers, she was advised by her attorney that she would no longer be monitored by the MCU. In fact, the Union had not called or visited Officer Daly for eighteen months.
The Union also contended that Officer Daly had a good faith basis not to provide her updated residency information. Officer Daly testified at the hearing that she was going through a divorce, and in September 2020, she obtained an order of protection against her husband. As a result, Officer Daly left her marital residence and did not advise MCU of the change of address. Officer Daly knew her husband communicated with members of the Yonkers Police Department and feared that providing her address would put her in danger.
The Union pointed out that after Officer Daly understood that she remained within the supervision of the MCU, fully cooperated and ultimately appeared for an updated IME on January 14, 2021 and provided updated addresses to her Lieutenant.
Arbitration Award
On July 28, 2021, the arbitrator issued an award finding that Officer Daly did not knowingly or intentionally violate the City's policies and practices and that the violations of the PPM did not cause significant harm to the City. The arbitrator granted the City's grievance and reduced the penalty from a sixty day suspension to a "written warning". The arbitrator determined:
... I find that [Officer Daly] did not knowingly or intentionally violate [the City's] policies and practices. Also, the violations that may have occurred did not appear to cause significant harm to the [the City]. [The City's] actions in the 17 months following its submission of [Officer Daly's] disability retirement papers to the State was consistent with what [Officer Daly] was told by her attorney, that the MCU would no longer monitor or supervise her. Crediting her testimony, [Officer Daly] was not contacted at all during those 17 months. Thus, though she may have been in error in some of her actions, it was not unreasonable for her to surmise that she was no longer under the supervision of the MCU. Further, as she believed she didn't not fall under the MCU at the time, [Officer Daly] had a good faith basis for not providing
updated residency information to [the City] because of the admittedly dangerous situation that she was dealing with concerning her husband.
Finally, after [Officer Daly] understood that [the City] believed that she did remain within the control of MCU, [Officer Daly] immediately complied with the [City's] policies, and has apprised [the City] of her whereabouts as required by the MCU.
Thus, I find this is not the case of willful or intentional disobedience and consequently, [Officer Daly's] conduct does not merit the discipline imposed. However, while not intentional and understandable, [Officer Daly] did not follow all of the procedures of the PPM. Therefore, I find, under the particular facts here, that [Officer Daly's] actions here did not warrant a two-month suspension. Rather I find that the suspension should be reduced to a written warning (NYSCEF Doc. 3 arbitration award at 3-4).
The City commenced this special proceeding against the Union and Officer Daly seeking to vacate or modify the arbitration award. The Union opposes the petition.
Discussion
It is well settled that Courts are bound by an arbitrator's factual findings, interpretation of a contract and judgment concerning remedies (see NY State Corr. Officers & Police Benevolent Assn. v State, 94 N.Y.2d 321, 326 [1999]). "A court cannot 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. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice" (Id. at 326).
Article 75 of the CPLR controls challenges to arbitration awards and provides that an award shall be vacated if the court finds that the rights of that party were prejudiced by: (i) corruption, fraud or misconduct in procuring the award, (ii) partiality, (iii) an arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made or (iv) failure to follow procedure (CPLR 7511[b][1]). An excess of power occurs "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (NY City Jr. Auth. v Transp. Workers' Union, Local 100, 6 N.Y.3d 332, 336 [2005]).
The City argues that the arbitration award must be vacated in that the award: (1) imposes a penalty that is not contemplated by the CBA, (2) exceeds the arbitrator's authority by introducing an additional element into the CBA that the violation must be willful or intentional, and (3) is irrational by crediting Officer Daly's testimony that she did not know she was subject to the continued monitoring of the MCU after the submission of her disability retirement papers and that she had a reasonable basis for not updating her address with the Yonkers Police Department.
Here, the CBA includes Appendix E, which outlines the disciplinary procedures for union members. The procedures provide for a disciplinary review process, including an arbitral review. The CBA provides that the arbitrator "shall not add to, subtract from nor otherwise modify the provisions of the parties' collective bargaining agreement. ... The arbitrator shall have the authority to approve or disapprove the penalty imposed or sought by the City/Department or modify such penalty as s/he determines appropriate." (NYSCEF Doc. 5, Section 7).
As to disciplinary penalties, Appendix E states that such penalties "may consist of and shall not be limited to" a written reprimand, a fine not to exceed $500, loss of leave entitlement, imposition of a probationary period not to exceed one year, suspension without pay not to exceed sixty days or discharge from service (NYSCEF Doc. 5, Section 6[A][B]).
The City argues that the penalty imposed by the arbitrator for a written warning is not one of the enumerated disciplinary penalties in the CBA. Rather, the City argues, the CBA provides for a "written reprimand". The City argues that the difference is that a "written reprimand" is a disciplinary action that may be counted against the officer in determining the penalty for any future disciplinary violations while a "written warning" is a mere cautionary action that carries no real disciplinary consequence.
Inasmuch as the CBA does not limit the penalty to be imposed for any violation to those specifically enumerated, the City's argument that the arbitrator exceeded her authority by imposing a penalty not contemplated by the CBA is without merit.
Moreover, the award does not impose an extra-contractual element to the proof required to establish a disciplinary violation. The arbitrator determined that Officer Daly violated PPM 130-14 and 120-1. In reducing the penalty from a sixty day suspension to a written warning, the arbitrator found that the violations were not willful or intentional and that Officer Daly had a rational basis for not updating her address with the Yonkers Police Department. Thus, the arbitrator has not altered the terms of the CBA or exceeded her authority. The arbitrator merely detailed her rationale for reducing the penalty imposed on Officer Daly by the Yonkers Police Department for her violations of the PPM by finding that the violations were not willful or intentional.
Thus, contrary to the City's contention, the arbitrator's award was not irrational, and the arbitrator did not exceed her authority (see Matter of City of Middletown v Weissinger, 188 A.D.3d 670 [2d Dept 2020]). Therefore, the award will not be vacated. The Court notes that CPL 7511(e) provides that upon the denial of a motion to vacate or modify an arbitration award, the Court shall confirm the award.
Accordingly, it is
ORDERED AND ADJUDGED that the petition to vacate the arbitration award is DENIED, the proceeding is DISMISSED, and the arbitration award is CONFIRMED.