Out-of-title work

Out-of-title work
Macrae v Dolce, Appellate Division, 2nd Dept., 249 A.D.2d 476

City of White Plains firefighters brought an Article 78 action contending that the City was requiring them to regularly perform out-of-title work by serving as fire lieutenants in violation of Section 61.2 of the Civil Service Law. Section 61.2 bars out-of-title work except “during the continuance of a temporary emergency situation....”

Although the City persuaded the Supreme Court to dismiss the petition on the grounds that Macrae had failed to exhaust his administrative remedy “as required by their collective bargaining agreement,” the Appellate Division reversed the lower court’s action.

Article XVIII, the contract clause relied on by Supreme Court in making its determination, tracked the exception set out in Section 61.2 and provided that “no firefighter shall be ordered or required to perform outside of his job description except in an emergency situation.”

The Appellate Division said that this clause “was not intended to cover [Macrae’s] claim that firefighters are regularly required to perform the duties of fire lieutenant duties.” Accordingly, Macrae’s claim is outside the scope of the grievance procedure set out in the collective bargaining agreement and thus it was not necessary to “proceed to arbitration” before commencing this Article 78 proceeding.

Significantly, the Appellate Division noted that “... when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations.”

Further, a court may not under the guise of construction, write into a contract conditions that were not included by the parties, nor may it construe contract language so as to distort the contract’s apparent meaning.

The error of the Supreme Court was that it viewed Article XVIII as requiring Macrae to file a contract grievance and arbitrate the claims. Because the alleged out-of-title work assignments were characterized as being “regularly assigned” to firefighters rather than the result of an “emergency situation,” the Appellate Division ruled that the firefighters were not compelled to “exhaust their administrative remedy” - here arbitration - before proceeding with this motion for a “declaratory judgment.”

The matter was returned to Supreme Court for its further consideration, including “the entry of an appropriate declaration.”