        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

117
CA 10-02491
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
RONALD LUCAS, AS PRESIDENT OF TEAMSTERS LOCAL
264 OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, PETITIONER-RESPONDENT,

                    AND                           MEMORANDUM AND ORDER

CITY OF BUFFALO, BYRON BROWN, MAYOR, STEVEN
STEPNIAK, COMMISSIONER, PUBLIC WORKS, PARKS
AND STREETS, AND KARLA THOMAS, COMMISSIONER,
HUMAN RESOURCES, RESPONDENTS-APPELLANTS.
(APPEAL NO. 1.)


GOLDBERG SEGALLA, LLP, BUFFALO (MELANIE J. BEARDSLEY OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

REDEN & O’DONNELL, LLP, BUFFALO (TERRY M. SUGRUE OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Erie County (Diane Y. Devlin, J.), entered September 17, 2010
in a proceeding pursuant to CPLR article 75. The judgment and order,
among other things, confirmed an arbitration award.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously affirmed without costs.

     Memorandum: Petitioner commenced these proceedings pursuant to
CPLR article 75 seeking to confirm two arbitration awards. The August
21, 2009 arbitration award at issue in appeal No. 1 (hereafter, 2009
award) found that respondents had violated the collective bargaining
agreement (CBA) by ignoring a binding past practice in which the most
senior caulker supervisor was to be offered the right of first refusal
for the acting-time position of Assistant Water Distribution
Superintendent. The 2009 award further directed that the impacted
employees shall be made whole, and the arbitrator retained
jurisdiction only in the event that the parties were unable to
implement the remedy “or determine the amount of the make whole
remedy.” The parties were unable to implement the remedy or determine
the amount thereof, and they returned to the arbitrator. The October
25, 2010 arbitration award at issue in appeal No. 2 (hereafter, 2010
award) directed respondents to pay Donald Mackowiak the sum of
$54,282.71 and Ronald French the sum of $1,094.99 based on
respondents’ failure to provide Mackowiak and French with the right of
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                                                         CA 10-02491

first refusal. By the judgment and order in each appeal, Supreme
Court confirmed the awards and denied respondents’ counterclaims to
vacate the awards.

     We reject respondents’ contentions that the awards require them
to violate Civil Service Law § 61 (2) and § 64 (2) and are against
public policy. Although pursuant to section 61 (2) employees are
prohibited from serving in out-of-title positions in nonemergency
situations (see Evangelista v Irving, 177 AD2d 1005, 1006),
respondents’ submissions to the court establish that, at least as of
January 2010, respondents considered acting-time positions to be
temporary appointments under section 64 (2), and such temporary
appointments are made “without regard to existing eligible lists”
(id.). Section 64 (2) does not specify that there must be an
emergency situation for an employee to be temporarily appointed to
work for a period not exceeding three months in an acting-time
position (see § 61 [2]). Further, there is no indication in the
record that the employees who worked in acting-time positions during
the time period involved in the grievance were improperly appointed to
those positions in violation of the Civil Service Law.

     Although as noted section 64 (2) places a three-month time limit
on temporary appointments that are completed without reference to an
existing eligible list, the 2009 award does not require respondents to
grant the most senior caulker supervisor an acting-time position
whenever an Assistant Water Distribution Superintendent is absent.
Rather, the award merely states that, if there is an acting-time
position, then the right of first refusal must be given to the most
senior caulker supervisor.

     Further, the 2009 award does not define what constitutes an
acting-time position. Indeed, we note that, just as respondents are
not bound to grant acting-time positions under the 2009 award but
instead must merely offer the right of first refusal, respondents are
also free to define acting-time positions under the award to the
extent that such definition is consistent with the CBA. Thus, it is
completely within the power of respondents to determine whether the
three-month time limit set forth in section 64 (2) is violated, and it
therefore cannot be said that the 2009 award violates the Civil
Service Law or public policy on those grounds.

     To the extent that respondents contend that the 2010 award must
be vacated because an employee has no right to a job appointment that
does not comply with the Civil Service Law and no right to back pay
where he or she was not appointed in accordance with the Civil Service
Law, that contention is without merit. There is no indication that
the individuals working in acting-time positions were improperly
appointed to those positions in violation of the provisions of the
Civil Service Law.

     We reject the further contention of respondents that the damages
awarded by the 2010 award are speculative or contrary to public
policy. The monetary awards provided to Mackowiak and French were
based upon the instances after September 2005 when respondents failed
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                                                         CA 10-02491

to offer those individuals the right of first refusal. Specifically,
the impacted workers were paid the difference between their own wages
and the wages they would have earned in the acting-time position of
Assistant Water Distribution Superintendent, as well as lost overtime
opportunities for those occasions. Thus, the record establishes that
the 2010 award was not speculative, but was properly “intended to
compensate the [workers] at issue for the losses [they] sustained
based on [respondents’] failure to comply with the terms of the [CBA]”
(Matter of Mohawk Val. Community Coll. [Mohawk Val. Community Coll.
Professional Assn.], 28 AD3d 1140, 1141).

     We further reject respondents’ contention that, under the
circumstances of this case, a limitation on their discretion regarding
acting-time positions violates public policy. A public employer is
not prohibited by public policy considerations from agreeing to limit
its discretion in the manner in which it appoints employees (see
Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of
Educ.], 90 NY2d 364, 374-376 [PCTEA]); such an agreement may be
inferred from past practice and prior negotiations, and it need not be
explicitly set forth in the CBA (see id. at 377 n 6). Where there are
public policy implications that warrant a waiver of discretion, there
must be “compelling evidence that [there was] a conscious choice to do
so” (Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4
NY3d 660, 664; see generally Consedine v Portville Cent. School Dist.,
12 NY3d 286, 294).

     Here, the record contains the hearing testimony concerning a past
practice of offering the acting-time position to the most senior
caulker supervisor and, according to the arbitrator, the “records”
from the time period in question support that assertion. In addition,
article 22 of the CBA provides that “[a]ll conditions or provisions
beneficial to employees now in effect which are not specifically
provided for in this agreement, or which have not been replaced by
provisions of this agreement, shall remain in effect for the duration
of this agreement, unless mutually agreed otherwise between
[respondent City of Buffalo] and the Union.” The records in question,
together with article 22 of the CBA, are sufficient to establish a
past practice in which respondents waived their discretion. This is
not a situation where the safety of the community is involved (cf.
Buffalo Police Benevolent Assn., 4 NY3d at 664), and we thus conclude
that public policy does not require an explicit waiver. Nor is this
an appointment to a permanent position. At most, an employee will be
in the position for a period not in excess of three months.
Therefore, under these circumstances, respondents have “not
relinquished [their] ultimate appointment authority” (PCTEA, 90 NY2d
at 377), and there are no public policy barriers to a waiver of
discretion.

     We reject respondents’ contentions that the arbitrator’s awards
are completely irrational, and in excess of the arbitrator’s power as
limited by the CBA. It is well settled that “[t]he role of the courts
with respect to disputes submitted to binding arbitration pursuant to
a CBA is limited, and a court should not substitute its judgment for
that of the arbitrator . . . Unless the arbitration award ‘is clearly
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                                                         CA 10-02491

violative of a strong public policy, . . . is totally or completely
irrational, or . . . manifestly exceeds a specific, enumerated
limitation on the arbitrator[’s] power,’ the award must be confirmed”
(Matter of Buffalo Council of Supervisors & Adm’rs, Local No. 10, Am.
Fedn. of School Adm’rs [Board of Educ. of City School Dist. of
Buffalo], 75 AD3d 1067, 1068). As discussed herein, the awards are
not against public policy, and we equally reject respondents’
contention that the arbitrator’s awards are irrational and were issued
in excess of the arbitrator’s authority. “An award is irrational if
there is ‘no proof whatever to justify the award’ ” (Buffalo Council
of Supervisors & Adm’rs, Local No. 10, Am. Fedn. of School Adm’rs, 75
AD3d at 1068; see Matter of Buffalo Teachers Fedn., Inc. v Board of
Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, 1505, lv
denied 11 NY3d 708).

     Pursuant to the CBA, the arbitrator could not amend, modify, or
delete any provision of the CBA. The arbitrator did not violate that
provision, however, nor are the arbitrator’s awards irrational
inasmuch as it cannot be said that there is no proof whatever to
support them. Indeed, the arbitrator recounted the hearing testimony
and evidence tending to establish a past practice concerning the
distribution of acting time in which the most senior caulker
supervisor was given the right of first refusal. Although we
acknowledge that there was contradictory testimony regarding the past
practice, there nevertheless is proof in the record to justify the
arbitrator’s awards such that it cannot be said that they are
irrational and that the arbitrator exceeded the power granted to him
under the CBA.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
