Ciccone v. Waterfront Commission of New York Harbor
| Decision Date | 27 November 1979 |
| Citation | 71 A.D.2d 195,422 N.Y.S.2d 668 |
| Parties | Anthony CICCONE, Petitioner, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent. Joseph A. BYRNE, Petitioner, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent. Russell W. NEITZ, Petitioner, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent. NORTHEAST MARINE TERMINAL CO., INC., Petitioner, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Howard Schulman, New York City, of counsel (David Jaffe, New York City, with him, on briefs; Schulman & Abarbanel and Robert H. Bogucki, New York City, attorneys), for petitioner Anthony Ciccone.
Martin J. McHugh, New York City, of counsel (Dennis C. McMahon and William M. Kimball, New York City, with him, on briefs; McHugh, Heckman, Smith & Leonard and Burlingham Underwood & Lord, New York City, attorneys), for petitioners Joseph A. Byrne and Russell W. Neitz.
Mark Abramowitz, New York City, of counsel (Elliot Cohen, New York City, with him, on briefs; Parker, Chapin, Flattau & Klimpl, New York City, attorneys), for petitioner Northeast Marine Terminal Co., Inc.
Susan Lushing, Staten Island, for respondent Waterfront Commission of New York Harbor.
Before KUPFERMAN, J. P., and MARKEWICH, ROSS and LYNCH, JJ.
The petitioner Ciccone is employed as an extra-labor foreman by the petitioner Northeast Marine Terminal, of which petitioners Byrne and Neitz were principal officers. Ciccone is also on the executive board of Local 1814, International Longshoreman's Association. Since 1976 Northeast Marine Terminal has provided him the use of an automobile in addition to his monetary wages. In consequence, the respondent brought charges against the petitioners, all pivoting on the allegation that the use of the car was not reasonable compensation for services rendered and was thus a prohibited payment to a representative of a labor organization (Labor Law, § 723; 29 U.S.C. § 186). After a hearing and upon the report and recommendation of the hearing officer, the respondent held the charges sustained and imposed penalties.
In this Article 78 proceeding seeking review of the respondent's determination, we agree with the petitioners that it is not supported by substantial evidence (see Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321).
The respondent, pursuant to a stipulation that it would assume the burden of proving all the charges, provided as the only direct evidence on the pivotal compensation question the testimony of Byrne and Neitz. They testified that Ciccone is a "tough hardnose but fair man" in a job as extra-labor foreman that requires that type because "(h)e shoulders all other foreman plus most of the other superintendents in terms of translating on behalf of Northeast the work needs into a work product". They also testified: that Ciccone asked for a pay raise and they thought he was entitled to it; that they were fearful that granting it in monetary form would raise the wage demands of other foreman; that they granted the raise through furnishing the use of a car, a method they felt was justified because Ciccone, alone among all the foremen, was on call at all hours of the day and night. Byrne and Neitz insisted that the use of the car was reasonable compensation for the services rendered.
In his report the hearing officer devoted all of his findings to explain why he refused to grant credibility to this testimony of Byrne and Neitz. But discrediting testimony contrary to that necessary to the burden of the proof does not satisfy the burden (Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659; Wallace v. Berdell, 97 N.Y. 13; Seymour v. Oceanic Navigating Co., Ltd. (5th Cir.) 453 F.2d 1185; 65 N.Y.Jur., Witnesses, § 93).
If we go further and examine the hearing officer's detailed reasons for rejecting credibility we find that he relied on personal preference, matters not in evidence and inferences that do not logically flow from the evidence. We cite some examples. The hearing officer stated his own irrelevant predilection when he held that it would have been desirable to have granted Ciccone a pay raise in monetary form. We find no evidence to support the following findings: that "this benefit has been intended to be conferred upon Ciccone regardless of the number of hours he actually worked"; that the "exercise of this discretionary authority (to grant additional monetary compensation) is the only exception to the fixing of wages by the collective bargaining agreements. The hearing officer's finding that "Ciccone's position as an extra-labor foreman is not unique since he is one of a number of foremen employed by Northeast Marine Terminal" is a distortion of the evidence that, while there were a number of foremen, Ciccone's position was unique in that he was the only extra-labor foreman. We find no support in logic for the hearing officer's conclusion that "providing Ciccone with an automobile can hardly be conceived of as the equivalent of a raise in pay since he has been paid on an hourly basis".
Substantial evidence is that from which "an inference of the existence of the fact found may be drawn reasonably" (Matter of Stork Restaurant, Inc. v. Boland, 282 N.Y. 256, 273, 26 N.E.2d 247, 255; see also 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 57, 379 N.E.2d 1183, 1186). We find no evidence here from which it can reasonably be inferred that the use of the automobile was not reasonable compensation for services rendered.
In view of this holding we find it unnecessary to pass upon the other points raised by the petitioners.
In this transferred and consolidated Article 78 proceeding, the determination of the respondent, dated March 17, 1978, suspending petitioners Ciccone, Neitz and Byrne for 20 days and Northeast Marine Terminal for ten days or pay a fine of $5,000, is annulled on the law and the petitions granted, without costs or disbursements.
All concur, except ROSS, J., who dissents in an opinion.
The petitioners, Anthony Ciccone, Russell Neitz, Joseph Byrne and Northeast Marine Terminal Co., Inc. seek judgment pursuant to CPLR, Article 78, annulling the determination of the respondent Waterfront Commission of New York Harbor (Commission).
The Commission commenced a proceeding, (1) to determine whether petitioners possessed the required good character and integrity within the meaning of the Waterfront Commission Act (the Act), in that Neitz and Bryne, acting on behalf of Northeast, provided Ciccone with "special" remuneration, to wit: a leased automobile; (2) to determine whether Neitz and Byrne had the required good character and integrity within the meaning of the Act, in that the furnishing of the automobile violated 29 U.S.C.A. § 186 (); (3) to determine whether petitioners possessed the required good character and integrity in that they furnished the automobile to Ciccone in violation of the New York State Labor Law Sections 722, 723, and 724; and, (4) to determine whether Ciccone, in accepting the use of the leased automobile from his employer, received something of value over and above his compensation as an employee and while an officer in Local 1814, International Longshoremens' Association. On October 5, 1977, a hearing was held before an Administrative Judge of the Commission. The evidence adduced was stipulated to and agreed upon by the parties.
At all times during these proceedings, Ciccone was a member of the Executive Board of Local 1814, a labor organization representing employees of Northeast. Byrne was the Director and Executive Vice-President of Northeast, and Neitz was a Director and President of Northeast. It was further stipulated that Ciccone accepted the car from his employer, that he kept the car at his home, and had daily use of the vehicle. Petitioners contend that the automobile was made available in lieu of a cash increase in Ciccone's salary. They argue that Ciccone required the car, since unlike other foremen, he was on twenty-four hour call. However, the record indicates that at no time was he ever summoned to the pier out of his normal working hours.
It is undisputed that the executive board of the union is the highest policy making body for the local and all major decisions emanate therefrom. Ciccone was, therefore, in a position to influence union policy. Both Neitz and Byrne knew that Ciccone held this significant position. Neitz conceded that Ciccone did not require an automobile to perform his duties as an extra labor foreman. Although other foremen received traditional supplementary...
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