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Friday, March 02, 2012

If there is no statutory, constitutional or public policy bar to arbitrating a contract grievance, the arbitrator decides whether the grievance is arbitrable

If there is no statutory, constitutional or public policy bar to arbitrating a contract grievance, the arbitrator decides whether the grievance is arbitrable
Mariano v Town of Orchard Park, 2012 NY Slip Op 01026, Appellate Division, Fourth Department

Supreme Court denied the Town of Orchard Park's motion to stay the arbitration of a grievance filed by the Orchard Park Police Benevolent Association [PBA] that alleged that the Town’s changing health care coverage for retired Town police officers was a violation of the relevant collective bargaining agreement.

In opposing the PBA's motion to compel arbitration of a grievance it had filed on behalf of the affected retired members; the Town argued that as the retired members were no longer members of the PBA they had no right to file a grievance, much less seek to arbitrate the grievance.

Supreme Court denied the Town’s cross-motion to stay the arbitration and the Appellate Division affirmed the lower court decision.

The Appellate Division said that when determining whether a claim is arbitrable in the public sector, courts must conduct a two-step inquiry.

First, a court must determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If it decides that there is no such bar, the court then determines if the parties agreed, by the terms of their particular arbitration clause, to refer their dispute to arbitration.

Finding that the question had passed the first test, the court, in applying the second test, held that the fact that the retirees are not members of the PBA or represented by it in collective bargaining negotiations “is not determinative in a threshold arbitrability analysis.”

Rather, said the court, “issues concerning the PBA's relationship to retired employees, issues concerning whether retirees are covered by the grievance procedure, and issues concerning whether the clauses of the contract support the grievance are matters involving the scope of the substantive contractual provisions and, as such, are for the arbitrator” to determine.

Commenting that New York's public policy encourages arbitration of labor disputes involving public employees, the Appellate Division decided that Supreme Court “ did not err in granting [the Union’s] cross motion to compel arbitration.”

The decision is posted on the Internet at:

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