Opinion
June 10, 1999
Appeals (1) from a judgment of the Supreme Court (Hughes, J.).
Grasso Grasso (Jane K. Finin of counsel), Schenectady, for appellants.
Roemer, Wallens Mineaux LLP (James W. Roemer Jr. of counsel), Albany, for respondent.
Hite Casey P.C. (Michael G. Weisberg of counsel), Albany, for New York State Inspection, Security and Law Enforcement Officers Union, amicus curiae.
Before: CARDONA, P.J., PETERS, SPAIN, CARPINELLO AND GRAFFEO, JJ.
OPINION AND ORDER
Petitioners include five firefighters and one fire captain for the City of Cohoes in Albany County who were receiving disability benefits pursuant to General Municipal Law § 207-a. General Municipal Law § 207-a (1) requires a municipality with a population of less than one million to provide the full amount of regular salary plus medical costs to a firefighter who sustains a job-related injury or illness for the duration of the period of disability. In 1997 petitioners were each examined by the City's physician to ascertain their physical capacity to perform full or light-duty work. Based on these medical evaluations, on October 31, 1997 the City ordered all petitioners to return to work on December 2, 1997 for full or light-duty assignments. By letter dated November 4, 1997 the attorney for petitioners advised the City that the firefighters intended to challenge their return to duty orders and requested due process hearings. Furthermore, through their bargaining unit, the Uniform Firefighters of Cohoes, Local 2562 (hereinafter Union), petitioners filed labor grievances on November 5, 1997 and did not report back to work.
Petitioner Joseph Trudeau was ordered back to work for full duty on December 1, 1997 while the five others were directed to return to light-duty assignments on December 2, 1997.
On December 3, 1997 the firefighters and their Union commenced a CPLR article 78 proceeding challenging the appropriateness of the City's return to work orders. Pursuant to CPLR 7502 (c), petitioners also requested a preliminary injunction to stay enforcement of the City's return to work orders pending this CPLR article 78 petition and the arbitration decision on their labor grievances. Supreme Court determined that firefighters who objected to being returned to duty were not entitled to a due process hearing prior to the issuance of return to work orders, and that the City could charge their absence from work during the pendency of administrative proceedings against their annual leave credits. The court further refused to enjoin the City's light-duty work orders and denied petitioners' demand for injunctive relief. Petitioners in proceeding No. 1 now appeal.
In February 1998, the Union filed a demand for arbitration with the Public Employment Relations Board alleging violations of its labor agreement and General Municipal Law § 207-a Gen. Mun.. The City thereafter commenced proceeding No. 2 against the Union seeking an order to permanently stay arbitration between the parties. Supreme Court granted the City's application to stay arbitration, from which order the Union also appeals.
Although a municipality may require a firefighter who is unable to perform his or her regular duties to return to work and perform certain light duties where the municipality's health authority affirms that the firefighter is capable of doing so (see, General Municipal Law § 207-a; cf., Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 85 N.Y.2d 480, 486), it has been long recognized that since General Municipal Law §§ 207-a Gen. Mun. and 207-c Gen. Mun. were enacted for the benefit of firefighters and police officers, respectively, who sustain disabling injuries in the line of duty, the statutory provisions are to be liberally construed in their favor (see,Matter of Mashnouk v. Miles, 55 N.Y.2d 80, 88; Matter of Leone v. Oneida County Sheriff's Dept., 166 A.D.2d 74, 76, affd 80 N.Y.2d 850;Local 589, Intl. Assn. of Fire Fighters, AFL-CIO v. City of Newburgh, 116 A.D.2d 396, 398; Matter of Curley v. Dilworth, 96 A.D.2d 903, 904; accord, Pease v. Colucci, 59 A.D.2d 233, 235).
Here, the City acknowledges that the firefighters are entitled to due process hearings before the termination of General Municipal Law § 207-a benefits (cf., Matter of Meehan v. County of Tompkins, 219 A.D.2d 774, 775; Matter of Hamilton v. City of Schenectady, 210 A.D.2d 843, 844), but contends that such hearings are not required prior to the issuance of orders to return to work. It follows, the City argues, that because most of the firefighters failed to come forward with medical evidence supporting their alleged inability to engage in limited assignments, they improperly refused to return to work and were no longer eligible for benefits pursuant to General Municipal Law § 207-a (3). In contrast, petitioners claim that their benefits were impermissibly terminated since they were not provided with notice and an opportunity for a hearing to present medically contraindicated proof before the effective date of their return to work orders.
Clearly, a stalemate in collective bargaining negotiations underlies this dispute. The City alleges that the Union has refused to consent to a General Municipal Law § 207-a Gen. Mun. (3) dispute resolution procedure, while the Union counters that the City should assent to utilizing the Workers' Compensation Board as the forum for resolution. Although failed negotiations delayed the development of hearing procedures, the issues on these appeals are whether the firefighters were entitled to evidentiary hearings prior to the issuance of return to work orders and whether their section 207-a benefits could be withheld or other accrued contract benefits charged against petitioners who failed to report to work while awaiting hearings.
Despite a public policy favoring collective bargaining of the terms and conditions of employment between public employers and employees, mandatory bargaining is not a prerequisite before a firefighter disabled in the line of duty is ordered to perform a light-duty assignment based on the inherent authority vested in a municipality by the statute at issue (see, General Municipal Law § 207-a; cf., Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., supra, at 483, 486; Matter of Barnes [Council 82, AFSCME — Monroe], 246 A.D.2d 755). In order for a municipality to derive appropriate services from its disabled employees within their capabilities, the express language of General Municipal Law § 207-a Gen. Mun. (3) authorizes a municipality to direct a light-duty assignment after obtaining a fitness opinion from the municipality's health authority or physician. We concur with Supreme Court that due process does not mandate a hearing prior to the issuance of a return to work order where, as here, there is no negotiated procedure providing for a hearing earlier in the course of administrative assessment.
We are cognizant of two prior decisions of this court which held that General Municipal Law §§ 207-a Gen. Mun. and 207-c Gen. Mun. are "markedly distinguishable" (Matter of Kirley v. Department of Fire, City of Oneida, 138 A.D.2d 842, 844; Matter of Schenectady County Sheriff's Benevolent Assn. v. McEvoy, 124 A.D.2d 911, 911) in the determination of eligibility for disability benefits. It is important to note that petitioners were all receiving section 207-a benefits and therefore their past disability status is not in dispute. Also, parallel statutory provisions govern the issuance of light-duty orders (see, General Municipal Law §§ 207-a [3]; 207-c [3]) so there is no differentiation between firefighters and police officers in this regard.
But, once a return to work order has been issued and contested by a firefighter to the extent the municipality has received documentation regarding the alleged medical inability of a firefighter to perform light-duty tasks (cf., Bett v. City of Lackawanna, 76 N.Y.2d 900, 901), due process considerations will require an evidentiary hearing prior to any modification of section 207-a benefits (cf., Matter of Meehan v. County of Tompkins, 219 A.D.2d 774, 775, supra). Here, two of the firefighters, petitioners James Fish and Joseph Trudeau, provided the City with medical documentation contesting their physical capability to return to work. In light of their submissions, the enforcement of their return to work orders was effectively postponed and their section 207-a benefits could not be withheld or terminated pending hearings. Although the remaining four petitioners were entitled to a hearing before the final termination of section 207-a benefits, it was not improper for the City to withhold benefits pursuant to General Municipal Law § 207-a (3) for their failure to report to work since they did not provide contrary medical documentation.
We find this situation to be analogous to the withholding of benefits found to be permissible in Matter of Schenectady Police Benevolent Assn. v. New York State Public Empl. Relations Bd. (supra, at 486-487), involving police officers who refused to undergo City-directed surgery (see, Mondello v. Beekman, 56 N.Y.2d 513, 515,affg on mem below 78 A.D.2d 824).
We, therefore, diverge from Supreme Court's reasoning on the issue of whether Fish's and Trudeau's absence from work may be charged against their available annual leave credits pending resolution of their light-duty challenges. Since these two firefighters have had no control over the time frame of the administrative process to be employed by the City, any loss of annual leave credits is equivalent to a diminution in accrued benefits disallowed under General Municipal Law § 207-a Gen. Mun. (3) (see generally, Matter of Curley v. Dilworth, 96 A.D.2d 903, 904, supra; Opns St Comp, 1985 No. 85-54). Hence, we conclude that vacation or sick leave credits so expended are to be recredited by the City to Fish and Trudeau, together with retroactive restoration of their section 207-a benefits from the date benefits were withheld, and such benefits shall continue to be paid until an administrative determination is issued.
In the absence of procedural guidance from the statute or a negotiated procedure, a municipality may exercise its prerogative to fashion a framework for such administrative proceedings (see, Local 589, Intl. Assn. of Fire Fighters, AFL-CIO v. City of Newburgh, 116 A.D.2d 396, 398, supra).
In proceeding No. 2, the Union argues that Supreme Court erred in granting the City's application to stay arbitration by holding that arbitration was not mandated by the parties' labor agreement. The Taylor Law (Civil Service Law art 14) supports harmonious relationships between a governmental entity and its employees by encouraging agreed upon procedures, such as arbitration, for resolving disputes (see, Civil Service Law § 200). Here, it is the City's posture that its General Municipal Law § 207-a (3) light-duty orders are not arbitrable, entitling the City to a stay. Supreme Court, in its thorough analysis of the legislative history of section 207-a, correctly set forth the analytical framework for determining whether an issue is arbitrable as involving two considerations: (1) whether the Taylor Law permits arbitration of the dispute, and (2) whether the parties have agreed to submit such a dispute to arbitration (see,Matter of Blackburne [Governor's Off. of Empl. Relations], 87 N.Y.2d 660, 665; Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local 82], 250 A.D.2d 327, 329; Matter of Barnes [Council 82, AFSCME], 235 A.D.2d 695).
Initially, we find the issuance of a General Municipal Law § 207-a (3) light-duty work order does not fall within the scope of the Taylor Law (see, Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 N.Y.2d 509, 513; cf., Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 85 N.Y.2d 480, 486,supra; Matter of Barnes [Council 82, AFSCME — Monroe], 246 A.D.2d 755, supra). We are aware that this court has previously found certain General Municipal Law article 10 disputes related to the performance of specific light-duty tasks or the extent of benefits provided to be arbitrable since no "statute, decisional law or public policy precludes a municipality and its employees from referring the dispute to arbitration" (Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local 82],supra, at 329). For instance, supplemental payments (see, id.), job safety issues (see, Matter of Town of Carmel v. Public Empl. Relations Bd. of State of N.Y., 246 A.D.2d 791), the provision of health and dental benefits (see, Matter of County of Schenectady [Kelleher], 134 A.D.2d 127), and work substitutions (see, Matter of County of Albany [AFSCME, Council 82], 114 A.D.2d 732) have been deemed proper subjects for mandatory bargaining or arbitration since such dispute mechanisms were not in contravention of the legislative intent of General Municipal Law §§ 207-a or 207-c. In contrast, the initial determination regarding light-duty work lies squarely with the municipality (see, General Municipal Law § 207-a; cf., De Poalo v. Schenectady County, 85 N.Y.2d 527, 533) and this managerial discretion by statutory imprimatur removes this determination from the purview of the Taylor Law (cf., Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., supra, at 486). However, since section 207-a does not dictate the procedures to be followed when a firefighter requests a due process hearing to challenge a municipality's medical opinion, we find no public policy impediment to arbitration for light-duty disputes where the parties have so agreed. As the amicus curiae emphasizes, labor agreements frequently provide for an expeditious resolution of light-duty challenges through arbitration. In this situation, the City and the Union have reached no accord on arbitration.
Petitioners also cannot prevail under the second prong of inquiry in the absence of a specific agreement to arbitrate such a claim (cf., Matter of Barnes [Council 82, AFSCME — Monroe], supra; Matter of Barnes [Council 82, AFSCME], supra, at 695). The labor agreement in this case, and more specifically, article X (Grievance Procedure), covers items which generally affect the "terms and/or working conditions". Based on our review of the agreement, there is no provision dealing with return to work directives made pursuant to General Municipal Law § 207-a Gen. Mun. (3). The only reference to section 207-a disability status appears in article XVII, indicating that members who are on section 207-a status as of January 1, 1987 shall "accumulate sick leave longevity, holiday pay and clothing allowance in accordance with the contract". With no reference to light-duty assignments and no procedure described for contesting the same, petitioners' dispute does not fall within the terms or conditions of employment encompassed by the broad definition of grievance in the parties' contract.
Furthermore, petitioners' grievance focuses on the hours of work and seniority issues, not the essence of their procedural contest regarding the City's authority to issue return to work orders without a prior hearing. While we appreciate the efficiency and cost savings associated with arbitration and encourage the parties to negotiate a mutually agreeable procedure for the resolution of light duty issues, we find no statutory or contract basis to mandate that this controversy be submitted to arbitration. Therefore, Supreme Court's decision to grant the City's application to stay arbitration will not be disturbed.
The parties' remaining contentions have been considered and found to be either without merit or unnecessary to address in light of this decision.
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur.
ORDERED that the judgment in proceeding No. 1 is modified, on the law, without costs, by reversing so much thereof as dismissed the petition as to petitioners James Fish and Joseph Trudeau, and petition granted to the extent that respondent is directed to restore General Municipal Law § 207-a benefits and sick and vacation leave credits to said petitioners retroactively from the date benefits were withheld pending administrative determinations on their challenges regarding return to work orders; and, as so modified, affirmed.
ORDERED that the order in proceeding No. 2 is affirmed, without costs.