Determining the arbitrability of an employee's grievance submitted to the employee's representative for collective bargaining

An employee in the relevant collective bargaining unit filed a grievance with the Civil Service Employees Association, Inc., Westchester County Local 860, Town of Greenburgh Unit [CSEA] and CSEA, on behalf of the employee, demanded that the matter be submitted to arbitration. 

The Town of Greenburgh [Town] commenced a CPLR Article 75 seeking a court order permanently staying arbitration. CSEA opposed the Town's petition and cross-petitioned to compel arbitration. 

The Supreme Court granted the Town's petition and denied CSEA's cross-petition. CSEA appealed.

Ultimately the Appellate Division affirmed the Supreme Court's order with costs, observing that New York State's public policy favors arbitral resolution of public sector labor disputes but noted that a dispute between a public sector employer and an employee's grievance is only arbitrable if it satisfies a two-prong test which, among other issues, the Court's decision addresses. 

The text of the Appellate Division's ruling is set out below:

Matter of Town of Greenburgh v Civil Serv. Employees Assn., Inc., Local 1000

2025 NY Slip Op 06711

Decided on December 3, 2025

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2025 

     SUPREME COURT OF THE STATE OF NEW YORK 

                                Appellate Division, 

                          Second Judicial Department

VALERIE BRATHWAITE NELSON, J.P.

LINDA CHRISTOPHER, JJ

LILLIAN WAN, JJ.

2023-11578
(Index No. 59352/23)

In the Matter of Town of Greenburgh, respondent,

v

Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Westchester County Local 860, Town of Greenburgh Unit, appellant.

Charny & Wheeler P.C., Rhinebeck, NY (H. Joseph Cronen and Nathaniel K. Charny of counsel), for appellant.

Vincent Toomey, Lake Success, NY (Thomas J. Marcoline of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Westchester County Local 860, Town of Greenburgh Unit appeals from an order of the Supreme Court, Westchester County (Thomas Quiñones, J.), dated September 19, 2023. The order granted the petition to permanently stay arbitration and denied the cross-petition to compel arbitration.

ORDERED that the order is affirmed, with costs.

An employee of the Town of Greenburgh was promoted to the position of general foreman on a probationary basis and then reassigned to his former position during the probationary period. The employee subsequently filed a grievance with the Town. Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Westchester County Local 860, Town of Greenburgh Unit (hereinafter CSEA) filed a demand for arbitration on behalf of the employee. In April 2023, the Town commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration. CSEA opposed the petition and cross-petitioned to compel arbitration. The Supreme Court granted the Town's petition and denied CSEA's cross-petition. CSEA appeals.

"'Public policy in New York favors arbitral resolution of public sector labor disputes'" (Matter of City of New Rochelle v Uniformed Fire Fighters Assn., Inc., Local 273, I.A.F.F., 206 AD3d 727, 728, quoting Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 AD3d 1049, 1050; see Matter of Village of Walden v Village of Walden Police Benevolent Assn., Inc., 210 AD3d 990, 991). "'However, a dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test'" (Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 167 AD3d 599, 600, quoting Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, 617-618; see Matter of Town of N. Hempstead v Civil Serv. Empls. Assn., Inc., Local 1000, 164 AD3d 1348, 1349). "'In determining whether a grievance is arbitrable, a court must first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance, and if there is no prohibition against arbitration, the court must then examine the [collective bargaining agreement] to determine if the parties have agreed to arbitrate the dispute at issue'" (Matter of Village of Walden v Village of Walden Police Benevolent Assn., Inc., 210 AD3d at 991 [internal quotation marks omitted], quoting Matter of City of New Rochelle v Uniformed Fire Fighters Assn., Inc. Local 273, I.A.F.F, 206 AD3d at 728; see Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 AD3d at 1050).

The Supreme Court properly found that public policy prohibits arbitration of the subject grievance. "'An employee's probationary appointment may be terminated . . . for any reason or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason'" (Matter of Young v City of New York, 221 AD3d 721, 722, quoting Matter of Trager v Suffolk County, 185 AD3d 697, 698). "'[A] probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible reason or an illegal purpose, or in violation of statutory or decisional law'" (Matter of Hayes v State of New York, 134 AD3d 843, 844, quoting Matter of Robinson v Health & Hosps. Corp., 29 AD3d 807, 808; see Matter of York v McGuire, 63 NY2d 760, 761).

Here, the employee was not discharged from his employment, and he did not allege that his reassignment to his former position was for a constitutionally impermissible purpose or in violation of statutory or decisional law. Nor is a reassignment from a probationary position to one's former position a punishment pursuant to Civil Service Law § 75 (see Matter of Patel v New York City Hous. Auth., 26 AD3d 172, 174). Moreover, Civil Service Law § 63(2) provides that the state civil service commission and municipal civil service commissions shall "provide by rule for the conditions and extent of probationary service." Pursuant to this statute, the Westchester County Department of Human Resources set forth the conditions of probationary appointment in Civil Service Rule 11. Thus, requiring the Town to follow for-cause procedures before exercising its discretion in reassigning a probationary employee during the probationary period would be against the purpose of probationary terms, as well as against the policy of allowing the Town to exercise its discretion in maintaining its work force (see Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, 664; Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 827, 161 AD3d 855, 858).

Furthermore, contrary to CSEA's contention, the parties had not agreed to arbitrate the subject grievance. Arbitration is a creature of contract (see Matter of Brady v Williams Capital Group, L.P., 14 NY3d 459, 465; Credit Suisse First Boston Corp. v Pitofsky, 4 NY3d 149, 155). If the court determines that the parties did not make an agreement to arbitrate, "that concludes the matter and a stay of arbitration will be granted or the application to compel arbitration will be denied" (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7; see Matter of City of New Rochelle v Uniformed Fire Fighters Assn., Inc., Local 273, I.A.F.F., 206 AD3d at 729). Where the relevant arbitration provision of a collective bargaining agreement (hereinafter the CBA) is broad, a court should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA (see Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 AD3d at 1050; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 176 AD3d 1197, 1199). If there is none, the issue, as a matter of law, is not arbitrable (see Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 187 AD3d 900, 901).

Here, article XXIII, section 2(b) of the CBA specifically excludes from the definition of "Grievance" matters that are within the Town's "exclusive authority to act," which includes "the right of the Town to direct its work force, to make all decisions as to the operation of the Town system and its work force, . . . and all other rights normally inherent in the right of management." Thus, there is no reasonable relationship between the subject matter of the dispute, which involves decisions regarding the Town's work force that are within its exclusive authority to act, and the general subject matter of the CBA (see Matter of Village of Walden v Village of Walden Police Benevolent Assn., Inc., 210 AD3d at 992; Matter of Town of N. Hempstead v Civil Serv. Empls. Assn., Inc., Local 1000, 164 AD3d at 1350).

Accordingly, the Supreme Court properly granted the Town's petition to stay arbitration and denied CSEA's cross-petition to compel arbitration.

In light of the foregoing, CSEA's remaining contention need not be addressed.

BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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Unsuccessful candidate for election to the Board of Education challenges the certification of another candidate seeking election to the position

Citing 8 NYCRR 275.16, the New York State Commissioner of Education Betty A. Rosa [Commissioner] noted that an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner of Education for good cause shown. 

In this appeal to the Commissioner challenging the seating of the individual designated the successful candidate elected to the School Board, the Commissioner noted that an individual or entity possibly adversely affected by a determination in favor of the Petitioner in the action is a necessary party and must be joined as such.

The Commissioner then explained that: 

1. Joinder requires that all necessary parties be clearly named as a respondent in the caption of the petition; and

2. All necessary parties must be served with "a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition".

Further, the Commissioner noted that "In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as 'each person whose right to hold office is disputed.'" [Citations omitted.]

Petitioner commenced the instant appeal by serving the district clerk of the school district, which constitutes timely service upon school district and the district clerk. However, Petitioner did not timely serve the challenged successful candidate as the record indicates that the challenged successful candidate was served with Plaintiff's petition "more than 30 days from the election and certification of the results". 

As the Petitioner did not identify "good cause" for Petitioner's failure to timely serve the successful candidate, Dr. Rosa said considering the fact that the Petitioner disputes the successful candidate's right to hold office she was "constrained to dismiss the [Petitioner's] appeal as untimely."

Click HERE to access the Commissioner's decision posted on the Internet.

Court rejects Petitioner's argument that delays in commencing the hearing prejudiced him as any delay was caused by Petitioner's own action

The New York City Housing Authority [NYCHA], after a Civil Service Law §75 disciplinary hearing, found the Petitioner guilty of 14 of the 15 charges of employee misconduct and incompetence leveled against him. The disciplinary penalty imposed: termination from employment with NYCHA. 

Petitioner filed a CPLR Article 78 challenging the NYCHA's decision contending the disciplinary charges were untimely. The Appellate Division unanimously confirmed NYCHA decision and the penalty imposed on Petitioner, ruling that the disciplinary proceedings were timely commenced pursuant to Civil Service Law §75(4) as Petitioner was served with the amended charges within 18 months of the earliest of the various charged incidents of the employee's alleged misconduct. The Court also rejected Petitioner's argument that any delay in commencing the hearing prejudiced him, observing that any the delay in holding the disciplinary hearing "was caused by [Petitioner's] own violation of NYCHA's vaccine policy."

The Appellate Division opined that "substantial evidence supported the trial officer's report sustaining 14 of the 15 charges of employee misconduct and incompetence leveled against [the Petitioner]." The Appellate Division also noted that NYCHA submitted testimony from Petitioner's former supervisors, along with multiple counseling memoranda, which showed that Petitioner repeatedly refused to comply with their directives and to perform the tasks assigned to him and testimony in the record "established that [Petitioner] became argumentative and hostile when asked to complete tasks, to the extent that his behavior required reports to NYCHA's Office of Safety and Security."

The Court also reject Petitioner's claims that NYCHA witnesses' were allegedly bias finding that "there exists no basis to disturb the credibility determinations of the trial officer".

Addressing the penalty imposed on Petitioner, dismissal from his position with NYCHA, the Appellate Division said "Termination of [Petitioner's] employment does not shock one's sense of fairness as it is not so disproportionate to the seriousness of the multiple charges of misconduct and incompetency proven" and Petitioner submitted no evidence showing that "he was terminated after engaging in protected activity, and the record was clear that he was discharged due to his own incompetence and misconduct."

Click HERE to access the Appellate Division's decision posted on the Internet.

Educator served with disciplinary charges alleging that she had directed a racially charged insult at a woman off school grounds

A tenured teacher [Petitioner] employed by the New York City Department of Education [DOE] was served with disciplinary charges alleging she [1] directed a racially charged insult at a woman off school grounds and [2] exhibited alleged discriminatory conduct directed at students in her classroom. 

Following a disciplinary hearing held pursuant to Education Law Section 3020-a, the Hearing Officer sustained the charges and specifications related to the language involving the woman uttered off school ground and recorded in a video of the incident and the Petitioner's discriminatory actions discovered in the course of DOE's investigation of the Plaintiff classroom conduct. 

Based on these findings, the Hearing Officer concluded that the Petitioner was guilty of the charges served on her and that Petitioner should be terminated from her position notwithstanding the absence of evidence of any prior discriminatory actions by Petitioner in Petitioner's employment record. 

Petitioner appealed but the Appellate Division, sustaining the Hearing Officer's finding and the penalty imposed, opined that the penalty of termination was supported by the record, was not disproportionate to the offense, and does not shock one's sense of fairness. 

In the words of the Appellate Division, "Supreme Court properly denied [Petitioner's] amended petition to vacate the arbitration award", and indicated that the Hearing Officer properly considered:

(1) "the gravity of the charges; 

(2) "the fact that [Petitioner] had recently participated in implicit bias training and received a copy of Chancellors Regulation A-830 which articulated DOE's anti-discrimination policy, and thus informed [Petitioner] of her duty to conduct herself professionally both inside and outside of the classroom; 

(3) "that [Petitioner] should have known that her behavior would violate the DOE anti-discrimination policy which might result in disciplinary action; and 

(4) "that [Petitioner] failed to demonstrate remorse or take responsibility for her conduct". 

The Appellate Division opined that "Notwithstanding [Petitioner's] effective record during her approximately 18-year career with DOE the penalty does not shock the conscience. Having received prior notice of the consequences of discriminatory behavior, Petitioner nonetheless engaged in a pattern of inappropriate conduct unbecoming a teacher."

Click HERE to access the Appellate Division's decision posted on the Internet.