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.
Matter of Matter of Lucas (City of Buffalo)
Decided on March 16, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
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 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 non-emergency 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 ). 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 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] ...