Ciccone v. Waterfront Commission

OPINION OF THE COURT J. Robert Lynch, J. 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 Lonshoremen’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; US Code, tit 29, § 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 respon [197] dent’s determination, we agree with the petitioners that it is not supported by substantial evidence (see Matter of Pell v Board of Educ., 34 NY2d 222). 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 the other foremen 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 foremen; 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 US 129; Wallace v Berdell, 97 NY 13; Seymour v Oceanic Navigating Co., 453 F2d 1185; 65 NY 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 [198] 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 Rest, v Boland, 282 NY 256, 273; see, also, 300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176, 181). 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 10 days or pay a fine of $5,000, should be annulled, on the law, and the petitions granted, without costs or disbursements.