[*1]
Matter of Toussaint v New York City Tr. Auth.
2005 NY Slip Op 51437(U) [9 Misc 3d 1107(A)]
Decided on July 19, 2005
Supreme Court, New York County
Wetzel, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 19, 2005
Supreme Court, New York County


In the Matter of the Application of ROGER TOUSSAINT, as President, Transport Workers Union of America, Local 100, AFL-CIO, Petitioner, For an Order Confirming an Arbitration Award Under Article 75 of the CPLR

against

Commenced By NEW YORK CITY TRANSIT AUTHORITY, Respondents.




103738/05

William A. Wetzel, J.

Petitioner brings this proceeding pursuant to Article 75 of the Civil Practice Law Rules seeking to confirm an arbitration award dated October 15, 2004, directing respondent New York City Transit Authority to reinstate grievant Shawn Gaines to the position held immediately prior to his suspension.

BACKGROUND


Roger Toussaint (hereinafter "Petitioner"), in his capacity as President of Transportation Workers Union of America, Local 100, AFL-CIO, is the petitioner on behalf of union member Shawn Gaines (hereinafter "Gaines"). Gaines has been employed by respondent New York City Transit Authority (hereinafter "TA") for over twenty (20) years, the last eighteen (18) of which, he has been a Train Operator. Due to problems with his hearing, several years ago, Gaines was given a medical restriction of "No operation of Transit vehicle in passenger service/Yard work only." TA and Local 100 have entered into a collective bargaining agreement (hereinafter "CBA") in which the parties agreed to binding arbitration of disputes involving the discipline of Train Operators.

On July 19, 2004, TA suspended Gaines, pending dismissal, upon disciplinary charges of insubordination and conduct unbecoming a transit authority employee. After step hearings, the matter was sent to an impartial arbitrator.

In an Award dated October 15, 2004, arbitrator Melissa H. Biren, found that TA had cause to discipline Gaines with a written warning for the use of profane and indecent language but that dismissal was not warranted. Arbitrator Biren ordered TA to reinstate Gaines to the position held immediately prior to his suspension and to make Gaines whole for all lost wages, benefits, and seniority from the date of suspension to the date he was restored to duty.

On October 1, 2004 (prior to the issuance of the arbitration award), Rapid Transit [*2]Operations, Subdivision A, which operates the 239th Street Train Yard where Gaines was employed, implemented a new policy regarding train operators. Implementation was originally intended for the beginning of 2004 but was postponed until October of that year. Under the new policy, the 239th Street Yard would no longer employ train operators with "yard only" or "no main line" job restrictions. One reason given for this change was that the primary duty of a train operator assigned to the yard is to move trains to and from the yard to subway terminals located on the main line, where trains in passenger service operate. Train operators who are deemed unable to safely operate trains in passenger service, because of their physical infirmities, are not medically cleared to operate trains on the main line.

On October 19, 2004, after the arbitration award was issued, Gaines returned to work and was given his backpay through that date. Gaines was instructed to report to the Transit Authority Medical Assessment Center 3 (hereinafter "medical center") for a return to work physical as required under Section 2.14(F) of the CBA (under this section, TA employees returning to work after any absence of more than sixty (60) days must undergo a physical examination). See Notice of Cross-Motion to Dismiss, Vacate, and/or Remand for Further Proceedings Before the Arbitrator at Ex. 6(A). Because Gaines did not bring his hearing aids to the physical, he was instructed to return with them the next day. On October 20, 2004 Gaines returned with his hearing aids and after the examination, was given the medical restriction of No passenger service / Yard work only the same restriction he had before suspension. Gaines was directed to return to the medical center on November 18, 2004 with an aided audiogram administered by his personal healthcare provider and was also later instructed to report on November 30, 2004 for a reclassification examination to determine whether he could be reassigned to a different TA title.[FN1]

Gaines failed to report to the medical center on November 18th and to his reclassification exam on November 30th. The TA argues that without additional information (such as the requested audiogram), Gaines' condition cannot be evaluated to assess whether his current medical restrictions should be modified. Currently his work status is permanently restricted/no work available.

Gaines claims that on January 4, 2005, he returned to the medical center and provided the required audiogram. Gaines further claims there is no need for reclassification because he is "perfectly able to perform the functions" of his former job.

On March 18, 2005 Petitioner filed the within petition seeking to confirm the arbitration award. [*3]

DISCUSSION

A. The Arbitration Award is Confirmed and has been Satisfied by TA.

It is evident from the award that arbitrator Biren's intention was to return Mr. Gaines to the same position he held prior to suspension both in the financial sense and in that of status. This court finds that the TA has done just that. Had the dispute that led to his suspension never occurred, come October 1, 2004, Gaines' medical restriction of No passenger service / Yard work only would have subjected him to reclassification under the TA's policy change. By allowing Gaines to return to work and providing him with the required backpay, the TA has complied with the requirements of the arbitration award. The TA does not vitiate its compliance with the award by subsequently requesting that Gaines follow the CBA's return to work procedures (under CBA § 2.14(F)) or by raising the issue of Gaines' classification under the new Train Operator policy.

It would violate both logic and equity for this court to create an exception for Mr. Gaines whereby he would not fall subject to the TA's October 1, 2004 policy change. This court confirms the arbitration award and finds that it has been satisfied.

B. The New Grievance Raised in this Case is not yet Ripe.

Separate and distinct is the new issue of Gaines' compliance with TA medical requirements. It was not the intention of arbitrator Biren, nor is it the present intention of this court, to contravene medical policies of the New York City Transit Authority. Gaines was directed to return to the medical center on November 18, 2004 with an aided audiogram and was also instructed to report on November 30, 2004 for a reclassification examination to determine whether he could be reassigned to a different TA title he did neither. Petitioner fails to realize that reinstatement is subject to all other CBA conditions, including submission to required physical examinations and, if necessary, reclassification.

Before the court can consider Gaines' claim that he is fit to perform his former job or the disputed fact of whether he submitted an audiogram on January 4, 2005, he must exhaust his available remedies under the CBA. See Robinson v. New York City Transit Authority, 226 AD2d 467 (2d Dep't 1996) (pre-disciplinary suspended Transit Authority employee cannot seek judicial review to compel his restoration to the payroll prior to arbitration, as the remedy he seeks is a subject governed by the collective bargaining agreement and he must, therefore, exhaust remedies therein) (citing Watergate II Apts. v. Buffalo Sewer Authority, 46 NY2d 52, 57); Melton v. Town of Islip, 78 AD2d 540 (2d Dep't 1980) (petition dismissed because the rights that petitioner seeks to enforce were accorded him solely by a collective bargaining agreement, and his remedy, which indisputably has not been exhausted, may be found in the grievance procedure therein set forth); Matter of Coffee v. Board of Education, 65 Misc 2d 931 (Supreme Court, Kings County 1971) (employee's claim, sounding in breach of a collective bargaining agreement, must be dismissed for failure to exhaust the exclusive grievance and arbitration procedures established therein).

This court therefore finds the grievances raised by Petitioner are not yet ripe for adjudication. To the extent Gaines takes issue with the TA's right to amend its medical standards for restricted duty positions, he must first exhaust his options under the CBA's grievance procedure (CBA § 2.1(B)). Likewise, to the extent that Gaines takes issue with the medical restrictions imposed on him, he must exhaust the CBA's medical grievance procedure (CBA § 2.1(D)). Because the TA allowed Gaines to return to work on October 19, 2004 and issued [*4]backpay required by the arbitration award, this court confirms the award and concludes that it has been satisfied. This constitutes the Decision and Judgment of the Court.

Dated: July 19, 2005

New York, NY

___________________________

William A. Wetzel

Footnotes


Footnote 1: Under the CBA, employees who have been employed by the TA for ten (10) years or more continue to receive the same rate of pay to which they would be entitled in their pre-reclassification position if the new position has a lower rate of pay. See Notice of Cross-Motion to Dismiss, Vacate, and/or Remand for Further Proceedings Before the Arbitrator at Ex. 6(A) § 2.16(A1)(B)(C).