Barnes (Council 82, AFSCME ex rel. Monroe), In re

• Decision Date: 20 May 1999
• Citation: 690 N.Y.S.2d 334
• Parties: 162 L.R.R.M. (BNA) 2445, 1999 N.Y. Slip Op. 4727 In the Matter of the Arbitration Between William W. BARNES, as Sheriff of Schenectady County, Respondent, and COUNCIL 82, AFSCME, on Behalf of David MONROE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 334

690 N.Y.S.2d 334

162 L.R.R.M. (BNA) 2445, 1999 N.Y. Slip Op. 4727

In the Matter of the Arbitration Between William W. BARNES, as Sheriff of Schenectady County, Respondent and

COUNCIL 82, AFSCME, on Behalf of David MONROE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 20, 1999.

Harry R. Hayes III, Albany, for appellant.

Gordon, Siegel, Mastro, Mullaney, Gordon & Galvin (Jeffrey T. Culkin of counsel), Schenectady, for respondent.

Hite & Casey P.C. (Michael G. Weisberg of counsel), Albany, for Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, amicus curiae.

Before: CARDONA, P.J., MIKOLL, YESAWICH JR., SPAIN and GRAFFEO, JJ.

MIKOLL, J.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 19, 1998 in Schenectady County, which, inter alia, granted petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

The issue before us is whether a correction officer's eligibility to perform light-duty work where he has been accorded total disability status pursuant to General Municipal Law § 207-c may be referred to arbitration.

David Monroe worked for the Schenectady County Sheriff's Department from 1985 to July 15, 1994 when he was terminated as a correction lieutenant for cause. In lieu of pursuing arbitration over his termination, Monroe agreed to return to the demoted position of correction officer.

He returned to work on January 17, 1995 as a correction officer but departed within an hour, complaining of an inability to work due to stress and anxiety. On February 7, 1995, Monroe filed an application for full disability benefits pursuant to General Municipal Law § 207-c. After the County denied the application, Monroe filed a grievance over the denial and sought arbitration which was held in March 1996. An award in his favor was confirmed on April 17, 1997. Following an appeal thereof, ¹ the County paid Monroe his General Municipal Law § 207-c benefits for the period January 17, 1995 until January 16, 1998. As of January 17, 1998 Monroe was placed on the County payroll and continued to receive his General Municipal Law § 207-c benefits.

Monroe was ordered by the County to submit to examinations on January 18, 1997 and March 19, 1998 by Steven Rappaport, a psychiatrist. As a result of the examinations, Rappaport concluded that Monroe was capable of performing light-duty work for four to six weeks and could then return to full duty. Monroe was ordered by letter to return to work on April 20, 1998 for light duty. The letter had appended to it a list of job specifications for correction officers performing light duty. Monroe challenged the order to return to work and submitted unsigned reports by his own physicians opining that he was not fit to return to work for the Sheriff's Department.

The County advised Monroe's union, respondent, and Monroe that his dispute over the April 10, 1998 return to work order was governed by article XI of the County's procedures relating to General Municipal Law § 207-c and that Monroe and his representatives should file a step three grievance within 10 days of his receipt of the order challenging it. A grievance was never filed.

On April 22, 1998, respondent filed a notice of arbitration on Monroe's behalf "pursuant to Article 16 of the collective bargaining agreement between the parties * * * and the revised Article VI light duty assignments of the County of Schenectady 207-c procedure". The County had adopted procedures to administer the General Municipal Law § 207-c program (hereinafter the § 207-c procedures), including article XI, which provides a procedure to challenge an order to return to work in a light-duty capacity.

A CPLR article 75 proceeding was instituted by petitioner seeking an order permanently staying the arbitration sought by respondent and Monroe, who filed a cross petition to compel arbitration. Supreme Court determined that no right to arbitration of the issue exists under the contract between the County and respondent and that the dispute is not the type authorized by the Taylor Law (Civil Service Law art 14) as arbitrable. The court granted petitioner's application to stay arbitration permanently and this appeal ensued. Monroe and respondent argue that there is no public policy which prohibits arbitration of this dispute and that without arbitration there is no adequate review of the determination of eligibility for light duty. We disagree.

The issue presented here was addressed by the Court of Appeals in Matter of Blackburne (Governor's Off. of Empl. Relations), 87 N.Y.2d 660, 642 N.Y.S.2d 160, 664 N.E.2d 1222. As the court...