Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Powell v Board of Educ. of Westbury Union Free School Dist., 2012 NY Slip Op 00790, Appellate Division, Second Department

The Education Law §3020-a arbitrator sustained certain charges of misconduct against Darnel Powell and terminated his employment.

Powell appealed, contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.

The Appellate Division rejected Powell’s claim, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

Sustaining the arbitrator's ruling, the court, however, pointed out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties.* Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

The decision also commented that in this instance, and contrary to Powell’s contention, the arbitrator properly refused to admit into evidence his proffered polygraph test evidence.

* Presumably this standard of review would not apply in arbitrations not statutorily mandated such as arbitrations available in disciplinary procedures negotiated pursuant to §76.4 of the Civil Service Law. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00790.htm

From the Office of the State Comptroller:

From the Office of the State Comptroller:

State Comptroller warns of lottery scam
On February 3, 2012 New York State Comptroller Thomas P. DiNapoli issued a warning of a lottery scam involving mail containing fraudulent checks that appear to have been issued by New York State. “An offer of easy money is usually too good to be true and that is the case here.” DiNapoli said.

For additional information, click on http://www.osc.state.ny.us/press/releases/feb12/020312.htm

Audits of municipalities issued during the week ending February 3, 2012

New York State Comptroller Thomas P. DiNapoli’s office this week released the following audits: the Town of Avon; the Village of Granville; the Village of Hamilton; the Village of Monticello; the Village of Port Jefferson; and, the Clifton–Fine Central School District. Click on the name of the jurisdiction to access the Comptroller's audit report.

Property Tax Cap filing requirements

New York State’s property tax cap, effective for local fiscal years beginning in 2012 and for the 2012-13 school year limits annual increases in the total amount of property taxes local governments and school districts can levy to either 2 percent or the rate of inflation, whichever is less, with some limited exceptions. For information, visit www.osc.state.ny.us and click the “Real Property Tax Cap Information” link, or call the State Comptroller’s Office at (518) 473-0006.

Raising a “triable issue of fact” precludes the granting of summary judgment in an action alleging unlawful retaliation

Raising a “triable issue of fact” precludes the granting of summary judgment in an action alleging unlawful retaliation

Delrio v City of New York, 2012 NY Slip Op 00747, Appellate Division, Second Department

German Delrio sued the City of New York seeking to recover damages for alleged unlawful retaliation in violation of §8-107 of the Administrative Code of the City of New York

Although Supreme Court granted the City’s motion for summary judgment to dismiss Delrio’s complaint; the Appellate Division reversed the decision “on the law,” setting out the events leading to its ruling as follows:

Delrio filed a complaint with the New York State Division of Human Rights [SDHR] alleging that the New York City Fire Department [NYFD] engaged in an unlawful discriminatory practice relating to employment, in violation of the New York State Human Rights Law, because of his sex.

SDHR determined that there was no probable cause to believe that NYFD had engaged in the unlawful discriminatory practice complained of, and dismissed Delrio’s complaint.

Delrio than asked the United States Equal Employment Opportunity Commission, [EEOC] to review his allegations. EEOC ultimately decided to adopt the findings of the SDHR.

Delrio than commenced an action against the City of New York and four FDNY Officers to recover damages for alleged unlawful retaliation in violation of Administrative Code of the City of New York §8-107.

The Appellate Division explained that in order to make out an unlawful retaliation claim, a plaintiff must show that "(1) [he or she] has engaged in protected activity, (2) [his or her] employer was aware that [he or she] participated in such activity, (3) [he or she] suffered an adverse employment action based upon [his or her] activity, and (4) there is a causal connection between the protected activity and the adverse action."

If the plaintiff “has met this initial burden, the burden then shifts to defendants to present legitimate, independent and nondiscriminatory reasons to support their actions.”

If defendants meet this burden, plaintiff then is required to show that the reasons put forth by defendants “were merely a pretext."

In order to establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual.

In this instance, said the court, while the City defendants established their entitlement to judgment as a matter of law by presenting nonretaliatory business reasons for the challenged actions, Delrio raised triable issues of fact as to whether the reasons given by the City defendants were pretextual.

The Appellate Division pointed out that Delrio had submitted an affirmation from his immediate supervisor wherein she stated that a reassignment of Delrio “violated FDNY internal procedure as well as known past practice.” Further, said the court, the record shows a “strong temporal correlation between [Delrio’s] protected activity, i.e., his involvement in the SDHR administrative complaint process, and the [City's] allegedly retaliatory actions.”

Concluding that Delrio had offered sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the City were merely pretextual, the City defendants were not entitled to a summary judgment dismissing Delrio’s complaint.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00747.htm

A ten-day suspension without pay recommended after employee is found guilty of refusing to comply with her supervisor’s instruction

A ten-day suspension without pay recommended after employee is found guilty of refusing to comply with her supervisor’s instruction

Human Resources Administration v Traylor, OATH Index #2162/11

OATH Administrative Law Judge Ingrid M. Addison found a clerical employee to be insubordinate when she refused her supervisor’s request to make corrections to ten cases records. 

Traylor's defense: She had  told the supervisor that despite her initials on the records, they were not her cases and "insisted that [her initials] must have been inserted by someone else." 

Ultimately another employee had to make the corrections.

Judge Addison rejected the employee’s contention that the supervisor’s failure to use the word “order” or “command” when she asked Traylor to make the corrections.

The ALJ explaining that “Even if [Traylor] had not worked on the cases originally, she did not have a legitimate excuse for disobeying the directive," recommended that Traylor be suspended without pay for ten days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2162.pdf

Liquidation of leave credits upon separation

Liquidation of leave credits upon separation

A NYPPL reader asked for some citations to court decisions that address the liquidation of an individual’s claimed leave credits upon his or her separation from his or her employment.

Among such rulings in NYPPL's  files are the following:

Payment for unused vacation and sick leave.
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A), [see http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm ];

Payment for unused vacation, sick, and terminal leave pursuant to General Municipal Law §207-m 

Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662, [see  http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm ];

Payment accrued unused compensatory, vacation and sick time pursuant to §207-m of the General Municipal Law upon separation 

Hauptman v Village of Elmira Hgts., 23 Misc 3d 439, [see

http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm];

Including a retirement incentive payment  in the administrator's five-year final average salary for the purposes of determining the individual's retirement allowance 

Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A), [see http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm ]; Sustained 30 AD3d 666 http://www.nycourts.gov/reporter/3dseries/2006/2006_04216.htm 

Including salary increases and other compensation received prior to retirement in determining the three-year final average salary for the purposes of computing the individual's retirement allowance 

Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)], [see http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm],

Affirmed 84 AD3d http://www.nycourts.gov/reporter/3dseries/2011/2011_04357.htm

Right to counsel in an administrative disciplinary hearing

Right to counsel in an administrative disciplinary hearing
Matter of Elmore v Plainview-Old Bethpage Central School District, Board of Education, 273 A.D.2d 307

The Plainview-Old Bethpage Central School District terminated the employee following an administrative disciplinary hearing held pursuant to Education Law §3020-a.

The employee appealed the dismissal, contending that the Hearing Officer’s ruling unfairly denied him his right to counsel during the hearing when the Hearing Officer ruled that the employee could not discuss his “cross-examination testimony” with his attorney during any adjournments in the proceding.*

The Supreme Court agreed and granted the employee’s petition to vacate the School District’s decision to terminate his employment.

The Appellate Division sustained the lower court’s ruling, noting that under Education Law §3020-a(3)(c)(i), a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.

The court explained that while it was mindful that teacher disciplinary proceedings are not criminal actions, it was equally mindful that a tenured teacher has a protected property interest in his position which raises due process considerations when a teacher is faced with termination of his employment.

Noting that New York courts have disapproved similar prohibitions forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division ruled that “In view of the due process considerations involved when a tenured teacher is threatened with termination of his employment, this is a sound approach, particularly in the instant case, where the time period involved was 10 weeks.”

Accordingly, the Appellate Division concluded that the Supreme Court did not err in vacating the award and directing a new hearing.

* The cross-examination of the employee was conducted during five days which extended over a period of 10 weeks.

The decision is posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=11&origin=Search&query=%2205738%22&rlt=CLID_QRYRLT6702424942&rltdb=CLID_DB921112324942&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA991112324942&tempinfo=word&vr=2.0

Substantial evidence test used to resolve challenges to an administrative decision

Substantial evidence test used to resolve challenges to an administrative decision
Matter of Incorporated Vil. of Lake Success v New York State Pub. Empl. Relations Bd., 41 AD3d 599

The Appellate Division held that the determination of the New York State Public Employment Relations Board, confirming the determination of an administrative law judge, made after a hearing, granting the petition of the Civil Service Employees Association to place certain positions into an already existing negotiating unit was supported by substantial evidence. 

Such evidence, said the court, consisted of PERB’s finding that the incumbents of those positions and the CSEA unit employees share a community of interest, that there is no conflict of interest that would affect the conduct of meaningful and effective negotiations, and that the placement would not cause administrative inconvenience. 

Accordingly, PERB's determination had to be sustained.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_05275.htm

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected
Matter of Dockery v New York City Hous. Auth., 51 AD3d 575

The Appellate Division held that the Housing Authorit’s termination of its employee based on evidence contained on a “911 recordings.”

The court explained that “911 recordings were properly admitted into evidence at the [administrative] disciplinary hearing since they were not official records relating to [the employee’s] arrest or prosecution, and thus were not subject to the sealing statute (CPL 160.50; see Matter of Harper v Angiolillo, 89 NY2d 761, 767 [1997].”

Under the circumstances, the Appellate Division ruled that “The penalty of dismissal does not shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_04753.htm

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department

David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.

Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.

Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”

The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."

Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

Lynch v City of New York, Supreme Court, New York County, Justice Carol Edmead, Index 650822 [Not selected for publication in the Official Reports]

New York City currently pays “one half of the rate” of employee contributions for retirement that it had earlier assumed* on behalf of its Tier I and Tier II members of the New York City Police Pension Fund and the New York City Fire Department Pension Fund. The City had assumed making such contributions in order to provide such individuals with “increased take-home pay.”

The City, however, discontinued making “employee contributions” on behalf of police and fire personnel enrolled as Tier III members of those retirement systems effective July 1, 2009. Such enrollees were otherwise required to pay 3% of their annual compensation as an employee contribution for 25 years.

Justice Edmead ruled that the City of New York violated §480(b)(i) and (ii) of the Retirement and Social Security Law when it commenced to require New York City police officers and firefighters initially appointed on or after July 1, 2009 to pay the full employee contributions otherwise required to the New York City Police Pension Fund and to the New York City Fire Department Pension Fund, as the case may be, upon their enrollment as Tier III members of their respective retirement systems.

The court rejected the City’s claim that such police officers and firefighters were required to pay the statutorily required 3% of their annual compensation as their "employee contribution" toward retirement “for 25 years,” explaining that when the relevant provisions of law were initially enacted there was no expectation that eventually a Tier III [and additional Tiers] might be established by these Retirement Systems.

Finding that RSSL §480(b) is applicable to police officers and firefighters who are in Tier III, Justice granted the Patrolmen’s Benevolent Association of the City of New York, the Captain’s Endowment Association of the City of New York and the Uniformed Fire Officers Association motion for summary judgment.

* See RSSL §480(b)(i)

A copy of Justice Edmead’s decision is available from NYPPL. Send your request by e-mail to publications@nycap.rr.com .

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration
Mahinda v Board of Collective Bargaining, 2012 NY Slip Op 00636, Appellate Division, First Department

After an informal conference and "Step II" hearing, disciplinary allegations against Josephine Mahinda, a provisional employee, were sustained, and her employment with the New York City Department of Transportation was terminated.

Subsequently Mahinda failed to establish that her employee organization, the Organization of Staff Analysts, [OAS], breached its duty of fair representation by failing to advance to arbitration the grievance arising out of her termination. 

Although Mahinda argued that OSA should have processed her grievance to arbitration, the Appellate Division said that she had not established that an agreement providing for provisional disciplinary procedures had been negotiated pursuant to §65(5)(g)* of the Civil Service Law. §65(5)(g) authorizes the City and certain other public employers to enter such agreements in the course of collective bargaining..

After considering other theories advanced by Mahinda to support her argument that she was entitled to submit the matter to arbitration, the Appellate Division ruled that “there was no basis on which to grant [Mahinda’s] request….”

Nor, said the court, was there any basis for granting her request to review the City's underlying decision to terminate her. As a provisional employee, Mahinda could be terminated at any time, "without a hearing, for almost any reason, or for no reason at all," unless such action constituted an unconstitutional or unlawful action.

Finding that Mahinda failed to demonstrate that in terminating her employment the City violated Civil Service Law §65, which governs provisional appointments, or any other constitutional or statutory provision,"nor had  she demonstrated that her employment was terminated in bad faith or that the termination was arbitrary and capricious," the Appellate Division dismissed her appeal

* Civil Service Law §65.5(g) authorizes “The city of New York; and any other entities whose civil service and examinations are administered by the New York City Department of Citywide Administrative Services [DCAS] and an Article 14 [Taylor Law] employee organization, to enter into agreements to provide disciplinary procedures applicable to provisional appointees who have served for a period of 24 months or more in a position which is covered by such an agreement. Further, no such provisional employee is to be deemed to be permanently appointed, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. [N.B. Repealed December 31, 2014]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00636.htm

New York State's University Police, Park Police, EnCon Officers and Forest Rangers approve new collective bargaining agreement

New York State's University Police, Park Police, EnCon Officers and Forest Rangers approve new collective bargaining agreement
Source: Office of the Governor

On January 31, 2010 Governor Andrew M. Cuomo and Manuel M. Vilar, President of the Police Benevolent Association of New York State, announced the ratification of a contract agreement between the state and the labor union representing New York State's University Police, Park Police, EnCon Officers and Forest Rangers. The union reports more than 95% of their members voted to ratify the contract.

The ratified contract resolves outstanding wage and contractual issues dating back to 2005, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for zero percent wage increases for 2011-2013, a 2% increase in 2014, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

The Agency Law Enforcement Services Unit (ALES) is composed of University police, Park Police, EnCon Officers and Forest Rangers. They have not had a contract since 2005 and were in arbitration for the years 2005-2007.

Key provision of the contract agreement include:

· Zero percent wage increases for 2011-2013, a 2% increase in 2014. 

· A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year. 

· Deficit Reduction Leave of five days this fiscal year and four days next fiscal year. 

· Retroactive payments that are scheduled to be paid in two installments -- one this fiscal year and one next fiscal year before the end of the calendar year. 

· Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for family premiums. 

· Random drug testing and drug testing for probationary employees in addition to reasonable suspicion testing. 

· A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of the Union and the GOER Director for implementation. 

· A health plan opt out so officers can opt out through a spouse/partner to a non-State health plan. Under the opt out, participants would receive $1,000 individual/$3,000 family . 

· Officers will receive broad layoff protection. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

Derosa v Dyster, 2011 NY Slip Op 09363, Appellate Division, Fourth Department

Patricia Derosa, a retired employee the City of Niagara Falls, sued the City in an effort to compel it to provide her with “either post-employment health insurance coverage or opt-out payments in lieu of such coverage, contending that she was entitled to such benefits pursuant to the terms of a Memorandum of Understanding [MOU] between the City and the Union.

The Appellate Division ruled that Derosa, as a retired employee, was not eligible to elect the “opting out” provision, explaining that the MOU gave qualified employees a choice of either participating in the health care plan or opting out of that plan. However, said the court, although the MOU permitted retirees to participate in the health care plan upon retirement under the same terms and conditions as employees, it did not contain a similar "opt-out provision" for retirees.

Pointing out that the opt-out paragraph set out in the MOU specifically stated that qualified employees could elect to opt-out of the health care plan, the Appellate Division held that Derosa, as a retiree, and thus no longer an employee, was entitled to enroll in the health care plan at no cost to her but could not elect to "opt-out."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09363.htm

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death
Machajewski v Town of Cambria, 89 AD3d 1175

Gerald A. Machajewski, a volunteer firefighter for the Town of Cambria, Niagara County, collapsed while responding to a call and died shortly thereafter.

It was determined that Machajewski suffered an acute coronary artery thrombosis, and the Workers' Compensation Board, applying the rebuttable presumptions contained in Volunteer Firefighters' Benefit Law §§44 and 61*, ultimately approved a claim for workers' compensation death benefits by Machajewski’s widow.

When the Town’s and its workers' compensation carrier’s appealed the Board’s determination, the Appellate Division said that there is no dispute that a heart or coronary artery condition caused Machajewski's death and thus his widow would entitled to death benefits if that condition "resulted from the duties and activities in which [decedent] was engaged" (Volunteer Firefighters' Benefit Law §61[1]).

As the record indicated that Machajewski had never been diagnosed with a heart condition and had been examined by his physician just weeks before his death and was found to be in good health, the Appellate Division ruled that “Inasmuch as that ‘evidence permits reasonable inferences to sustain the finding of the [B]oard that the death was due to unusual strain and effort’ attendant to [Machajewski’s] duties, the Town was obliged to provide substantial evidence to the contrary in order to defeat his widow’s application.

The court held that “the Board properly determined that claimant's demonstration of entitlement to death benefits had not been rebutted.”

* Presumptions regarding death or disability due to disease or malfunction of his or her heart or coronary arteries suffered by a volunteer firefighter alleged to have resulted from the performance of the duties and activities in which the volunteer fireman was engaged

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_07765.htm

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
 

The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.

The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*

Courts, said the Appellate Division, determine arbitrability according to a two-prong test:

1. May the parties arbitrate the dispute and, if so,

2. Whether the parties in fact agreed to do so.

The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:

1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and

2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.

The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.

Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.

In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."

As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.

* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at: http://caselaw.findlaw.com/ny-supreme-court/1055483.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00458.htm