Local 589, Intern. Ass'n of Fire Fighters, AFL-CIO v. City of Newburgh

• Decision Date: 21 April 1986
• Docket Number: AFL-CI,R
• Citation: 501 N.Y.S.2d 369,116 A.D.2d 396
• Parties: LOCAL 589, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,espondent, v. The CITY OF NEWBURGH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 369

501 N.Y.S.2d 369

116 A.D.2d 396

LOCAL 589, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS AFL-CIO, Respondent, v. The CITY OF NEWBURGH, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 21, 1986.

William M. Kavanaugh, Corp. Counsel, Newburgh (William F. Ketcham, on brief), for appellant.

Crain & Rones, P.C., Newburgh (Joseph P. Rones, of counsel), for respondent.

Before MOLLEN, P.J., and LAZER, NIEHOFF and RUBIN, JJ.

LAZER, Justice.

At issue is the validity of a collective bargaining provision which under certain circumstances confers upon a private physician selected by mutual agreement of the parties the power to decide whether a firefighter sustained a job-related illness or injury for purposes of establishing eligibility for benefits pursuant to General Municipal Law § 207-a. We conclude that the provision is a valid one.

Local 589, International Association of Fire Fighters, AFL-CIO, commenced this proceeding to confirm a compulsory arbitration award imposing a contract between Local 589 and the City of Newburgh after an impasse had been reached in the collective bargaining process. The city cross-moved to vacate the arbitration award on a variety of grounds, only one of which is raised on this appeal from the ensuing judgment confirming the award. Contending that Special Term erred in confirming the portion of the award that amended article XXIV of the collective bargaining agreement, the city argues that the provisions of the award establishing a procedure for determining § 207-a benefits are contrary to public policy and thus that portion of the award must be vacated.

General Municipal Law § 207-a requires a municipality with a population of under 1,000,000 to provide firefighters who are disabled in the line of duty with greater benefits than those awarded firefighters who are otherwise disabled. Since the statute is remedial in nature and is intended to provide a benefit to firefighters, it is to be construed liberally in their favor (see, Matter of Mashnouk v. Miles, 55 N.Y.2d 80, 88, 447 N.Y.S.2d 889, 432 N.E.2d 761; Pease v. Colucci, 59 A.D.2d 233, 235, 399 N.Y.S.2d 519).

Unlike the provisions conferring somewhat similar benefits on firefighters employed by the City of New York (see, Administrative Code of the City of New York § B19-7.84), § 207-a establishes no procedural framework for determining whether a firefighter has suffered a job-related illness or injury, instead allowing each municipality to formulate its own procedure consistent with the demands of due process (see, Legg v. Fitzmaurice, 112 Misc.2d 283, 446 N.Y.S.2d 961). Presumably, this was intended to permit each municipality to devise a methodology consistent with local needs.

The previous collective bargaining agreement between the City of Newburgh and Local 589 established a Medical Review Board to determine whether a firefighter had sustained a job related injury or illness. Article XXIV of that agreement provided as follows:

"There shall be a Medical Review Board to determine whether an individual member of the unit has an illness or injury which is job related under 207-a of the General Municipal Law. Such Board shall be comprised of a physician selected by the unit member, a physician selected by the City and in the event that these physicians cannot agree, then a physician shall be selected by the mutual agreement of the individual's physician and the City's physician to make a determination.

"The recommendation of the physician selected by the mutual agreement of the individual's physician and the City's physician shall be advisory to the hearing officer named by the City in determining benefits under Section 207a of the General Municipal Law. Subject only to review in an Article 78 proceeding."

The arbitrators included this provision in the new contract they imposed, but with an important modification which is the subject of the instant dispute. The second paragraph of the article was amended to read:

"The determination of the physician selected by the mutual agreement of the individuals [sic ] physician on [sic ] the city's physician shall be final subject to an appeal in an Article 78 proceeding by either party."

Although the wording of the provision leaves much to be desired, all parties agree that the effect of this modification is to grant determinative power to the agreed-upon physician. They disagree as to the validity of the provision.

In determining the validity question, it is irrelevant that the contract was imposed by compulsory arbitration and was not reached through successful collective bargaining. It is well settled that a court may set aside a binding compulsory arbitration award of this nature only if the award is found to be arbitrary and capricious (see, Caso v. Coffey, 41 N.Y.2d 153, 158, 391 N.Y.S.2d 88, 359 N.E.2d 683; Mount St. Mary's Hosp. of Niagara Falls v. Catherwood, 26 N.Y.2d 493, 508-510, 311 N.Y.S.2d 863, 260 N.E.2d 508). In deciding whether an award has a rational basis or is arbitrary and capricious, various factors will come into play, depending on the nature of both the challenged provision of the award and the challenge itself. For example, when the challenge is made to the amount of a wage increase on the basis of the employer's fiscal condition, the strength of the evidence proffered to the arbitral panel is clearly relevant (see, Caso v. Coffey, supra, 41 N.Y.2d at p. 158, 391 N.Y.S.2d 88, 359 N.E.2d 683). On the other hand, when, as here, a contractual provision in such an award is attacked as being contrary to public policy, it can be deemed arbitrary and capricious only if the same provision would be deemed violative of public policy had it been freely entered into by the employer. Any other approach would limit the efficacy of this means of resolving public labor disputes.

So viewed, the question before us is whether a municipality may delegate to a physician selected by the parties to their agreement the power to determine whether a firefighter suffers from a job-related illness or injury.

At the outset, we conclude that delegating the determination whether a firefighter has sustained a job-related injury or illness to a private physician when the physicians selected by the city and Local 589 are unable to agree is analogous to submitting such a dispute to an arbitrator, and the validity of such a delegation is to be tested by the same principles as are applied to determine whether a public entity may delegate a part of its decision-making power to an arbitrator. The general rule, of course, is that a public employer may agree to arbitrate disputes with its employees (see, Syracuse Teachers Assn. v. Board of Educ., 35 N.Y.2d 743, 744, 361 N.Y.S.2d 912, 320 N.E.2d 646; Board of Educ. v. Associated Teachers of Huntington, 30 N.Y.2d 122, 331 N.Y.S.2d 17, 282 N.E.2d 109). Nonetheless, there exist "a small number of areas, interlaced with strong governmental or societal interests" (Binghamton Civ. Serv. Forum v. City of Binghamton, 44 N.Y.2d 23, 29, 403 N.Y.S.2d 482, 374 N.E.2d 380, citing Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers' Assn.], 37 N.Y.2d 614, 616-617, 376 N.Y.S.2d 427, 339 N.E.2d 427) which are so basic to the proper functioning of the public employer that it may not delegate the power to make decisions falling within those areas. Thus, if the delegation of the decision-making power in this case does implicate a strong public policy, "as evidenced by statutory or decisional law" (Binghamton Civ. Serv. Forum v. City of Binghamton, supra, 44 N.Y.2d at p. 29, 403 N.Y.S.2d 482, 374 N.E.2d 380), it must be set aside (see, e.g., Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 N.Y.2d 266, 397 N.Y.S.2d 737, 366 N.E.2d 826).

This public policy exception to arbitrability has been applied sparingly in recent years as arbitration has achieved increasing recognition as a viable means of settling disputes. Thus, the Court of Appeals, in rejecting a challenge to an arbitration award which limited the powers of a school district in making teacher assignments, unequivocally declared that:

"Incantations of 'public policy' may not be advanced to overturn every arbitration award that impairs the flexibility of management of a school district. Every collective bargaining agreement involves some relinquishment of educational control by a school district. Only when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility, may it be set aside" (Matter of Port Jefferson Sta. Teachers Assn. v. Brookhaven-Comsewogue Union Free School Dist., 45 N.Y.2d 898, 899, 411 N.Y.S.2d 1, 383 N.E.2d 553).

In a similar vein, the Court of Appeals has upheld the delegation by a public employer to an arbitrator of the power to impose sanctions on errant public servants, even when the misconduct rises to the level of receiving bribes to violate the public trust and the sanction imposed is relatively minor (Binghamton Civ. Serv. Forum v. City of Binghamton, supra ). When such significant aspects of a public body's authority can be delegated to an arbitrator, it follows that the power to decide whether a particular firefighter has sustained a job-related injury or illness can similarly be submitted to an unbiased third-party physician, at least in the absence of a clear and convincing indication of a contrary legislative intent.

In determining whether there is contrary legislative intent, we have considered the fact that certain other statutes conferring similar benefits on public employees specifically provide that the determination of whether an injury is job-related is to be made by a specific official or body. Nevertheless, an examination of the relevant provisions reveals no comprehensive scheme for making such determinations. Rather, in each case the Legislature has taken a separate approach, varying with the public...