Determining a union’s right to arbitrate
Batavia CSD v Batavia Teachers’ Assn., App. Div., Fourth Dept., 265 AD2d 806
Jefferson County v Jefferson Co. Deputy Sheriff’s Assn., App. Div., Fourth Dept., 265 AD2d 802
The Appellate Division, Fourth Department, handed down two rulings that addressed efforts by public employers to prevent the arbitration of grievances filed by unions on behalf of members.
The Batavia Case
The Batavia Teachers’ Association demanded arbitration of grievances it filed on behalf of two certified teachers who were not selected to fill vacant interscholastic coaching positions. The association contended that [1] the district’s selection procedure violated the negotiated agreement’s contract provisions dealing with appointment to coaching positions and [2] uncertified applicants were “improperly appointed when certified candidates were available.”
Essentially the school district asked for the stay of arbitration because “public policy prohibits an arbitrator from reviewing the Board’s hiring decisions.”
Here, however, the Appellate Division viewed this argument as irrelevant under the circumstances. It said that the association was not seeking to arbitrate the school board’s exercise of discretion in making those hiring decisions. Rather, said the court, the association claimed that the Board did not adhere to its procedural obligations in making its hiring decisions.
Accordingly, although part of the relief sought by the two employees was their respective appointment to the coaching positions, the Appellate Division ruled that public policy did not prohibit submission of these two grievances to arbitration, affirming a state Supreme Court justice’s ruling denying the district’s petition to stay the arbitration.
In Port Washington Union Free School District v Port Washington Teachers Association, 45 NY2d 411, the Court of Appeals said that “[a] stay of arbitration on [public] policy grounds is ‘premature and unjustified’, even though the remedy sought may not, due to [public] policy concerns, be enforceable, where it is possible that the arbitrator may use his broad powers to fashion a remedy ‘adequately narrowed to encompass only procedural guarantees’”.
Accordingly, in determining whether a public sector grievance is subject to arbitration, the court must first determine is whether or not arbitration of the subject matter of the grievances is authorized by the Taylor Law. As the Court of Appeals said in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509, if the demand for arbitration passes this first test, the court must then determine if the parties appear to have agreed “by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.”
Finding that the collective bargaining agreement contained a broad arbitration clause and that there was a “reasonable relationship” between the subject matter of the dispute and the general subject matter of the parties’ collective bargaining agreement, the Appellate Division concluded that the two grievances should be submitted to an arbitrator. The court commented that once the arbitrator assumes jurisdiction over the grievances, he or she will:
1. Make “a more exacting interpretation of the precise scope of the substantive provisions of the Taylor Law agreement; and
2. Determine whether the subject matter of the dispute fits within such substantive provisions.
The Jefferson County Case
Jefferson County Deputy Sheriff Gary M. Belch was found guilty of disciplinary charges by an arbitrator. The sheriff, however, imposed a harsher penalty than the one recommended by the arbitrator. As a result, the union served a demand for arbitration, claiming that the sheriff had imposed the heavier penalty in retaliation for Belch’s exercising his right to submit the disciplinary action to arbitration.
The Appellate Division ruled that the County’s petition for a stay of the arbitration should be denied. Although Jefferson County contended that the Sheriff’s decision to increase the penalty recommended by the arbitrator is not subject to further arbitration, the court said it disagreed.
According to the ruling, “the allegation of retaliation is covered under the agreement’s definition of grievance,” and thus the proper procedure to address a grievance is arbitration. The court said that with respect to other grounds for staying the arbitration advanced by the county, “it is for the arbitrator to determine whether this arbitration is barred by collateral estoppel or res judicata.”
There was a technical element to this appeal that should be noted. The county’s petition was initially rejected by a State Supreme Court justice on the grounds that it was untimely. The Appellate Division, however, observed the union’s demand for arbitration was served on the sheriff, rather than the proper party -- the county.
Why wasn’t service on the sheriff proper? Because, said the court,” the sheriff was neither a party to the collective bargaining agreement nor an individual designated to accept service on behalf of [the county].”
This failure to comply with the service provisions of Section 7503 of the Civil Practice Law and Rules tolled the time limit for service of a petition to stay arbitration. The county was subsequently properly served with the demand and therefore its motion to stay the arbitration was held timely as measured from the date of “proper service” on it.
Why it is necessary for a party to go to court to obtain a stay of arbitration? Because if it refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” the arbitration can proceed “in absentia.” For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator may [1] proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.
On the other hand, in Suffolk County v SCCC Faculty Association, the Appellate Division pointed out that if a party participates in arbitration when “it did not have to,” it cannot later seek to vacate the arbitration award “because it was not required to submit to the arbitration of the issue.”
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