Opinion
39605/03.
Decided June 2, 2004.
Petitioner has applied to this court for a judgment, pursuant to CPLR 7511, vacating and setting aside the arbitrator's award in its arbitration proceedings with the respondent, Local 854, International Brotherhood of Teamsters, AFL-CIO, on the grounds that the arbitrator exceeded his powers, and issued an award that violates public policy. The underlying dispute between the parties arose from the termination of bus driver Jona Fleurimont for having had two accidents within one school year. According to the petitioner, the arbitrator, despite the testimony of the other vehicle's driver [William Eugene Perry], and an eyewitness [Paul Reed], decided ". . . Fleurimont's bus had indeed struck Perry's vehicle on the morning of January 23, 2003, but that Fleurimont had not been aware of the impact . . . [and] went on to find that petitioner's management had entered the January 27, 2003 hearing with a 'closed mind' and with a preconceived intention to terminate Fleurimont and that, accordingly, 'the process as a whole was not fundamentally fair from the outset' . . . [since] (a) two 'similarly situated' drivers employed by petitioner were not terminated after having had two or more accidents during the same school year, and (b) petitioner's explanation for its failure to terminate these two drivers; i.e., administrative error, did not exempt it from a charge of disparate enforcement." The petitioner adds that the arbitrator distinguished the firing of seven other drivers on the basis of impermissible factors; to wit, seniority and certification of the drivers; the delay between the accidents and the drivers' termination; and, the severity of the particular accident. The petitioner concludes by asserting that "Section 29(1) (C) of its Collective Bargaining Agreement (CBA) does not distinguish between drivers on the basis of their seniority or certification status. Nor does it prescribe a specific number of days within which the employer must take action after a driver has been involved [in] a second accident during the course of a single school year. Rather, section 29 (1) (C) clearly and unequivocally states in mandatory terms that 'any driver who has two (2) accidents within the same school year will be dismissed." Lastly, the petitioner asserts that since enforcement of the CBA's two-accident rule is important to protect the safety of the youngsters who ride its buses and the public at large, the finding that the petitioner did, in fact, have two such accidents must lead to the conclusion that his continued employment as a bus driver presents a safety hazard that contravenes public policy.
Respondent counters by asserting that despite an unambiguous showing that ". . . the Employer has failed to apply the contract language in question in an even-handed manner to its employees, the Court of Appeals has clearly stated that 'even where the arbitrator makes a mistake of fact or law, or disregards the plain words of the parties' agreement, the award is not subject to vacatur "unless the court concludes that it is totally irrational or violative of a strong public policy" and thus in excess of the arbitrator's powers." (Citing Hackett v. Milbank, Tweed, Hadley McCloy, 86 NY2d 146 Matter of National Cash Register Co., 8 NY2d 377). In addition, respondent contends that ". . . in order to find that the arbitrator's award violated public policy, this Court would have to ignore the arbitrator's factual finding that the Employer's public policy was disingenuous. In point of fact the arbitrator found that the employer applied the two accident rule with such discretion and inconsistency to other similarly situated employees that the employer was 'hardly in a position to stress its concern with safety of school children as the overriding factor in its enforcement of the safety rules embodied in the collective bargaining agreement."
Petitioner replied to the foregoing by pointing out that ". . . the arbitrator agreed that the bus driver Jona Fleurimont did, in fact, have two accidents within the same school year, but he ruled that Fleurimont had to be reinstated because he had been treated differently from other similarly situated drivers. However, that conclusion was reached only after the arbitrator rejected all of petitioner's examples of similar treatment . . ." In addition, petitioner stresses that ". . . an award that directs the reinstatement of a school bus driver who has already had two at-fault accidents in a single year is impossible to reconcile with the public safety and cannot be permitted to stand."
A review of the hearing decision reveals an extensive history of union activities, conflicts, and grievances involving Mr. Fleurimont, including his video surveillance by management agents. In addition, the administrative judge noted that the alleged eyewitness [Paul Reed] had a felonious criminal record involving crimes of moral turpitude; to wit, theft and larceny, which did not ". . . discredit his general, eye-witness description of the accident," and that his recollection/observation of the vehicular traffic at the scene of the accident was discordant with a video of the site submitted by the union which established that it was a well traveled, city-bus routed area with a nearby bus stop. The administrative judge [ALJ] also uncovered that the said eyewitness had repeatedly met with the owner/witness on numerous occasions. It was further established that from the time the petitioner returned his bus on the day of the accident to the time that he picked it up on the following day, January 24, 2003, an additional 1.2 miles had been registered on its odometer; and, that aside from a slightly balding left front tire, no other damage had been recorded on the subject bus. Mr. Fleurimont's supervisor confirmed the lack of damage, and testified that ". . . while the Local 854 agreement provided for termination after two accidents in one school year, the Local 1181 agreement permitted three. The first called for a warning, the 2nd brought a suspension up to one week, and the 3rd resulted in a termination." He also stated, contrary to his supervisor, that the ". . . Company rule as applied under the 854 contract required at fault accidents; i.e., accidents caused by the driver's fault." Even more disturbing to the ALJ was the clear indication that Mr. Fleurimont's supervisor had not spoken to any of the witnesses (driver, eyewitness, or bus escort) prior to the hearing; had made no attempt to ascertain if any safety officers had been following Mr. Fleurimont's bus on the day of the accident; and, that none of the management representatives conferred post-hearing to arrive at a penalty to be imposed, leading him to conclude that ". . . Consolidated had made its decision to terminate Jona [Fleurimont] before the hearing ever began." The ALJ also took note of the fact that the hearing minutes contained an inaccurate assertion that Mr. Fleurimont had made an illegal turn immediately prior to the accident, which was never corrected. So too, neither the bus escort nor any safety officer was present at the hearing, despite the fact that Mr. Fleurimont had denied knowledge of any accident. That failure was deemed inherently unfair by the ALJ in light of the fact that there was ". . . no evidence that the Union received any notice of the Employer's case against Fleurimont prior to the hearing, (of course, Fleurimont did not), and thus would have had no opportunity to produce witnesses . . ." to either refute the claim of an accident with his bus or to substantiate his assertions of having been unreasonably followed for over two weeks, inclusive of the day of the accident. Ultimately, the ALJ concluded that "while each witness left something to be desired in the way of consistency, accuracy, and credibility to his presentation, Reed in his pre-arbitration statement and deposition, and Perry in his accident reports and testimony, I conclude that an impact, indeed, did take place at approximately 7:30 AM between Fleurimont's school bus and the Mercedes Benz which Perry was driving that morning. And that in striking the left rear of the Perry vehicle, with the right front tire of the bus in what was probably a glancing blow just before the vehicle passed fully through the middle of the intersection as the bus made a full right turn, Fleurimont had moved from the main or middle lane of Westchester Avenue across the service road toward Crosby Avenue. . . . I also find that neither Fleurimont nor his escort, Best, were aware of what happened. . . . Finally . . . as to whether unit drivers under the Local 854 contract must be at fault in at least two accidents during one school year in order to be terminated under the rule embodied in Section 29, which is silent on the matter of fault, the Employer has presented a mixed, unclear standard for its treatment of drivers, one which justifies the conclusion that there was no clear policy as to this matter." In short, the ALJ determined that "not only was Fleurimont denied an opportunity to present his side, he was not provided with sufficient or any notice so he could do so, and the Employer had made its mind up before it ever entered the hearing room. Even Section 4(B) of the parties' agreement mandates a meeting between them to seek to adjust a grievance or complaint other than the summary discharges and grounds set forth in Section 4(A). At no point was the Union or its shop steward permitted to seek an adjustment short of termination. . . . It is apparent that something more, an illicit motive, was involved in the Employer's conduct. . . . Consolidated seized on the report of the accident by Perry to rid itself of this divisive and active Union dissident employee as quickly as possible. Its animus is clearly established in the December 19 letter to all employees, issued little more than a month before Jona's discharge. The Employer pulled no punches . . . in identifying and vilifying a long standing driver who consistently insisted on exercising his protected concerted activities through the dissident Teamsters group, TDU, of which he was one of the leading advocates at Consolidated. . . . I also conclude that Consolidated had Fleurimont followed and photographed by a safety officer an unreasonable number of times over his last two weeks of employment, and this surveillance constituted further evidence of its animosity toward him and his dissident activities. . . . [and] that the Employer has failed to show that Fleurimont would have been discharged even if he had not engaged in protected activity (citing, Wright Line Division, 251 NLRB 1083, enf'd 662 F.2d 899 (1st Cir. 1981) NLRB v. Transportation Management, 462 US 393). The Employer has failed to meet its burden that it terminated Fleurimont for a non-discriminatory reason because the history of its treatment of similarly situated drivers who had accidents while driving a school bus for the Employer show (sic) that they were not treated the same. . . . I have previously rejected the Employer's excuse for the leniency these [other] drivers received contrasted with Fleurimont and have noted that the Employer's agent, Antoci, had full knowledge of each accident, and could have, but chose not to correct the mistakes and errors in applying the wrong, local 1181 union form to them. Such disparate treatment, without a reasonable basis therefore, establishes unequal or discriminatory treatment, which cannot justify Fleurimont's discharge. . . . [B]ecause of the inconsistent and unclear standard for dealing with driver accidents shown on this record, Consolidated is hardly in a position to stress its concern with safety of school children as the overriding factor in its enforcement of the safety rules embodied in the collective bargaining agreement. Finally, by virtue of its termination of [a] driver . . . after only one at fault accident, because of its alleged severity running a stop sign where Antoci was applying the two accident at fault standard, Consolidated showed that it could and would exercise discretion as to its enforcement of the rules set forth in Section 29(1) (c), subjectively, even where the language of the section did not authorize such an exercise of discretion."
It is clear that "[a] court may remit an administrative determination to a board for further proceeding including reconsideration." (See Matter of 50 Plaza Co. v. New York City Conciliation Appeals Board, 104 AD2d 886). However, "it is well settled that the Court's power to review an administrative action is limited to whether the determination was warranted in the record, has a reasonable basis in law and is neither arbitrary nor capricious." (See Matter of Pell v. Board of Education, 34 NY2d 222, 356 NYS2d 833; Matter of Colton v. Berman, 21 NY2d 322, 287 NYS2d 647). In other words, for this court to decide that the ALJ's decision not to uphold the arbitrator's decision to terminate Mr. Fleurimont is arbitrary and capricious, it would have to find that the ALJ's decision was without reason, unsupported by substantial evidence or erroneous as a matter of law; i.e., that the ALJ had imposed a standard not required by the collective bargaining agreement herein concerned, or that the ALJ had interpreted the agreement's provisions in a manner inconsistent with its plain words (compare Communications Workers of America, AFL-CIO v. NYNEX Corp, 2000 U.S. Dist. LEXIS 4786; 25 E.B.C. 1154). This Court can arrive at no such conclusion. To the contrary, it is the determination of this Court that in line with the findings made by the ALJ, as hereinabove set forth, Mr. Fleurimont's termination was the end-result of long term animus stemming from his high profile union activities; that the petitioner was engaged not merely in retaliatory conduct, but was actively harassing Mr. Fleurimont, and subjected him to disparate treatment which was maliciously calculated to result in his unwarranted termination. Therefore, this Court declines to grant the relief herein requested by the petitioner; to wit, for a judgment, pursuant to CPLR 7511, vacating and setting aside the arbitrator's award in its arbitration proceedings with the respondent, Local 854, International Brotherhood of Teamsters, AFL-CIO. Instead, the court finds that on the grounds delineated by the ALJ, he neither exceeded his powers nor did he issue an award that violates public policy. This constitutes the decision and order of this Court.