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Tuesday, August 09, 2011

Decisions concerning Article 75 motions seeking a stay of arbitration


Decisions concerning Article 75 motions seeking a stay of arbitration
Schenectady v Schenectady PBA, 285 AD2d 725
NYC Transit Authority v Amalgamated Transit Union Local 1056, 284 AD2d 466 

The PBA Case

The Schenectady Police Department unilaterally placed police officer Cheryl Flory on medical leave, effective April 10, 2000 to July 3, 2000, pursuant to the Family Medical Leave Act [FMLA].

Flory had been absent on unlimited paid sick leave for more than a year. Flory's union, the Schenectady PBA, grieved and demanded arbitration, contending that the department had violated the collective bargaining agreement. It alleged that the agreement provided “members with unlimited sick leave that guarantee that there will be no reduction in employee benefits or any unilateral changes in past practices.”

The department attempted to obtain a stay of arbitration on the ground that the grievance was not arbitrable because implementation of FMLA, a Federal statute, could not be considered a violation of the terms of the Agreement.*

A State Supreme Court justice denied the stay, finding that the grievance was arbitrable because it did not hinge on an interpretation of Federal law.

Instead, said the court, it simply raised the issue of whether the Agreement's provisions for employee leave time had been violated by department's unilateral imposition of one of the terms of the FMLA -- a mandatory minimum of a 12-week leave without pay -- on Flory's sick leave.

In considering the department's appeal of the denial of its petition for a stay of arbitration the Appellate Division said that, in general, grievances arising under public sector collective bargaining agreements are subject to arbitration where:

1. The Taylor Law authorizes arbitration of the dispute; and

2. The parties have agreed in their collective bargaining agreement to submit such disputes to arbitration.

The Appellate Division found that “[b]oth of these prerequisites for arbitrability are satisfied in the instant matter” since:

1. There is no dispute that the issue of employee leave time is a term or condition of employment; and

2. Although the parties did not agree to arbitrate matters pertaining to FMLA, the Agreement reflects that both parties did express their consent to arbitrate grievances regarding leave time, with “unresolved grievances * * * [to] be submitted to arbitration by either party”.

Accordingly, the court affirmed the Supreme Court's order denying the department's motion for a stay of arbitration.

FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.


The Local 1056 Case

The New York City Transit Authority [NYCTA] obtained a stay of arbitration from a State Supreme Court justice. Local 1056 appealed.

The case arose when the NYCTA received a notice from the New York State Department of Motor Vehicles [DMV] that the license of one of its bus drivers, Marvin Moses, would be suspended effective August 3, 1999, because he had allowed his automobile insurance to lapse. DMV subsequently confirmed that Moses's license had been suspended as of August 3, 1999.

Learning that Moses had continued to drive a bus during his suspension, NYCTA, citing Vehicle and Traffic Law Article 19-A, the NYCTA suspended Moses's employment for 64 days, a period equal to that during which he drove with a suspended license.

Local 1056, contending that the suspension of Moses's license was made in error, in that Moses had automobile insurance in effect during the entire period of the suspension, and that Moses was unaware of the suspension because the DMV failed to notify him, grieved the suspension.

NYCTA obtained a stay of arbitration of the denial of Moses's grievance on the theory that “the grievance was not arbitrable because it was merely performing its statutory obligation to enforce the Vehicle and Traffic Law, and that the performance of such a statutory duty was not subject to arbitration pursuant to the parties' arbitration agreement.”

The Appellate Division said that a court may stay arbitration on the ground that the particular claim sought to be arbitrated does not fall within the scope of the parties' arbitration agreement.

In making such a determination, the courts do not to engage in a penetrating analysis of the scope of the substantive provisions of a collective bargaining agreement but merely determine “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement].”


Here, said the Appellate Division, the arbitration provision is broad and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement.

The collective bargaining agreement bars the arbitrator from rendering a determination or opinion “limiting or interfering in any way with the statutory powers, duties, and responsibilities of the Authority in operating, controlling, and directing the maintenance and operation of the transit facilities, or with the Authority's managerial responsibility to run the transit lines safely, efficiently, and economically”.

However, “[c]ontrary to the contention of the NYCTA, whether the resolution of the grievance by the arbitrator would violate that prohibition is not a matter for the courts.” Rather, such an inquiry requires the type of exacting interpretation of the precise scope of the substantive provisions of the CBA that is for the arbitrator” to resolve.

Vacating the stay that the NYCTA had obtained from Supreme Court, the Appellate Division commented that fact that submitting the grievance to arbitration “may require the arbitrator to interpret or apply statutes such as Vehicle and Traffic Law Article 19-A does not compel a different result.”

* FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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