| Matter of Council of School Supervisors & Adm'rs, Local 1, Am. Fedn.of School Adm'rs, AFL-CIO v New York City Dept. of Educ. |
| 2011 NY Slip Op 06451 [87 AD3d 883] |
| September 15, 2011 |
| Appellate Division, First Department |
| In the Matter of Council of School Supervisors and Administrators,Local 1, American Federation of School Administrators, AFL-CIO, by Its President ErnestLogan, Respondent, v New York City Department of Education et al.,Appellants. |
—[*1] Bruce K. Bryant, Brooklyn, for respondent.
Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.),entered August 4, 2010, which, to the extent appealed from, granted the petition seeking toconfirm an arbitration award that required the City to restore on-street parking permits topetitioner's members, and denied the City's cross petition to vacate the arbitration award and todismiss the petition, unanimously reversed, on the law, without costs, the petition denied, and thecross petition granted.
Petitioner, Council of School Supervisors and Administrators (CSA), Local 1, AmericanFederation of School Administrators, AFL-CIO, by its President Ernest Logan, is a labororganization certified pursuant to article 14 of the Civil Service Law as the bargainingrepresentative for school principals, assistant principals, and other supervisors and administratorsin the City's school system. Respondents include the City by the Mayor (City), and the New YorkCity Department of Education (DOE), which is a municipal agency that administers the City'spublic education system, and is the employer of the CSA-represented employees.
In early 2008, the City enacted a citywide plan applicable to all agencies to reduce thenumber of parking permits issued to municipal workers for parking on city streets, and to ensurethe proper regulation of such permits by the City Department of Transportation (DOT). Thereason for the plan was to reduce congestion and pollution on the city streets, and to encouragethe use of public transportation. Prior to that time, parking permits were distributed by each cityentity based on demand rather than corresponding to parking spaces actually available.
For the 2007-2008 school year, DOE issued more than 63,000 permits for just 25,000 spacesavailable to DOE employees. The permits could be used in any of the 10,000 parking spacesdesignated by DOT for DOE use on the city streets, or in the 15,000 spaces on DOE premises.The permits made no distinction between on-street parking or parking on DOE premises. Norwere the permits site-specific. Any CSA-represented employee who requested a [*2]parking permit for use in spaces reserved for DOE employees wasgranted one, although having the permit did not guarantee a parking space.
Upon application of the citywide plan, the DOE (as well as other agencies) was restricted to10,000 permits for the corresponding number of available on-street spaces, and was no longerauthorized to issue the on-street permits on demand (as distinguished from the permits it maystill issue for parking spaces on DOE property). Instead, the permits issued by DOT for on-streetparking are site-specific, and therefore issued to personnel working at a particular site.[FN*]The number of DOE parking permits was thereby substantially reduced, and DOE denied permitsto many CSA-represented employees who had previously held them.
In August 2008, CSA filed a grievance against the DOE, arguing that any reduction in theparking permits issued to CSA members violated a provision of the collective bargainingagreement between DOE and CSA that dealt with conditions of employment. The CSAcontended that DOE could not make such a change without appropriate prior negotiation withCSA.
The grievance went to arbitration, and following a hearing, an arbitration award was enteredagainst the DOE and the City. The arbitrator found that the permits policy change was a propersubject of bargaining as it "constituted a significant and adverse alteration of the bargaining unitmembers' working conditions." It directed DOE to "return[ ] all parking permits previously heldby CSA bargaining unit members" in the 2007-2008 school year until negotiations could beconducted with CSA over the proposed reductions.
In September 2009, the CSA commenced this proceeding pursuant to CPLR article 75 toconfirm the arbitration award. The City respondents cross-petitioned for an order to vacatearguing that: (1) it violated strong public policy; (2) the arbitrator vastly exceeded his authority;and (3) the arbitration award was irrational.
By order and judgment entered August 4, 2010, the court granted the petition, confirmed theaward in CSA's favor, and denied the City's cross petition to vacate the award. This was error.
As a threshold matter, we reiterate well-settled law that an arbitration award will be vacatedonly where "it is violative of a strong public policy, or is totally irrational, or exceeds aspecifically enumerated limitation on [the arbitrator's] power" (Matter of Brown & Williamson TobaccoCorp. v Chesley, 7 AD3d 368, 372 [2004] [internal quotation marks and citationsomitted]). Here, however, we agree with respondents that the award should be vacated on all ofthe above-mentioned grounds.
It is undisputed that the power to issue parking permits rests in the exclusive control of theCity. Respondent City by Mayor Bloomberg, and nonparty DOT have the power under NYConstitution, article IX, § 2 (a) and (c), state law (see Vehicle and Traffic Law§§ 1641, 1642) and local laws (see Municipal Home Rule Law § 10[1] [ii] [a] [6]; Administrative Code of City of NY § 24-801 et seq.) to regulatetraffic in the City streets, as well as parking. DOT is the preeminent City agency responsible forregulating traffic, including parking, within the City (see Santiago v Riccio, 170 AD2d340 [1991], appeal dismissed 77 NY2d 989 [1991]).
In this case, the award directs DOE to issue permits in such manner and by such method[*3]that it directly overrides the authority of DOT. Indeed, itdirects DOE to exercise a legal authority it does not possess. This not only means the arbitratorexceeded his authority, but did so in an entirely irrational way. Moreover, Supreme Court erredin attempting to soften or justify this irrational overreach.
Specifically, the court found that the award had no direct bearing on DOT's authority toregulate on-street parking because the number of parking permits that DOT allocated to DOEexceeded the number of CSA members affected in this proceeding. In other words, the arbitratorhad decided only "the issue of entitlement" as to the 10,000 on-street parking permits assigned toDOE. Further, the court noted that the arbitrator had heard testimony that DOE's practice ofissuing parking permits was a condition of employment. Thus, the court denied the City's crosspetition because it found that the City had failed to show how the award was inconsistent withthe terms of the collective bargaining agreement which required negotiation of changes in theconditions of employment.
The foregoing findings miss the point. First, it is irrelevant that the award is consistent withthe collective bargaining agreement. The agreement was forged between CSA and DOE. DOTwas not a party to the collective bargaining agreement, and cannot be bound by it. DOT did notagree to issue parking permits to any CSA member who demanded a permit. Nor did DOTexpressly agree to the arrangement in place prior to the installation of the citywide plan, namelyissuing more permits than available corresponding spaces. Nor was DOT a party to thearbitration. Yet, the issuance of on-street parking permits lies in the exclusive control of DOT notDOE. Thus, either DOE has been directed to negotiate a "perk" it cannot legally deliver, or wewould have to accept the clearly unsupportable position that the arbitration award de factotransferred the authority to regulate traffic and parking in the City of New York to DOE, certainCity employees and their collective bargaining representatives.
Moreover, we reject the court's attempt to justify the arbitrator's overreaching by holding thatthe award did not infringe on the City's and DOT's authority to regulate traffic and parkingbecause DOT issued 10,000 on-street permits to DOE, and DOE is simply allocating them whenit reinstates them for certain CSA members. This reasoning simply further underscores theirrationality of the award.
At the heart of the citywide plan, and its objective to reduce congestion and pollution, are10,000 site-specific permits. That is, current permits issued by DOT, unlike the permitsissued in prior years to DOE, are regulated by issuing them to personnel at a specific physicallocation (either a school or a DOE facility) adjacent to or near the on-street parking spacesallocated to DOE.
According to the affidavit of DOE's director of special projects, this means that parkingpermits can be issued only to personnel working in schools or DOE facilities that have on-streetparking spaces assigned to the facility by DOT. According to DOE, approximately 300 schools inthe city do not have any on-street or off-street parking spaces available. Thus, while a number ofCSA members previously received permits even though they worked at such schools, the DOEfurther affirms that it is no longer "possible or practical for DOE to give all DOT issued permitsto CSA union members, especially to those who are not assigned to schools with on-streetparking."
This is entirely consistent with DOT's determination that regulation is necessary to reducecongestion and pollution. The objectives of reducing congestion, pollution and the City's carbonfootprint, and promoting the use of public transportation are all city initiatives [*4]encompassed in the City Charter and the Administrative Code. Tothe extent that the award essentially annulled the judgment of the City as to those objectives ofthe citywide plan, we find that it also violated public policy. Concur—Gonzalez, P.J.,Tom, Friedman, Catterson and Richter, JJ. [Prior Case History: 2010 NY Slip Op31664(U).]
Footnote *: However, the DOT issued anadditional 650 permits to the DOE for teachers and staff whose work required them to visitmultiple sites during their workdays.