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Wednesday, June 04, 2014

An alleged ambiguity in the application of a provision in a collective bargaining agreement is to be resolved by the arbitrator


An alleged ambiguity in the application of a provision in a collective bargaining agreement is to be resolved by the arbitrator
New York City Tr. Auth. v Transport Workers Union of Greater N.Y., Local 100, 2014 NY Slip Op 03689, Appellate Division, Second Department

A bus operator [Driver] employed by the New York City Transit Authority for almost 20 years was required to undergo and pass biennial physical examinations which, among other things, required him to have "the ability to recognize the colors of traffic signals and devices showing standard red, green and amber."

An ophthalmic physician examined Driver and determined that Driver "had a history of color-blindness, that Driver identified the color red as black, and that Driver had a "strong red-green color deficit." The physician recommended that Driver undergo a "road test" before it was determined whether he met "the standard required for safe commercial drivers." 

TA decided that Driver should not undergo the road test because it was a non-medical examination that cannot test an individual’s ability to recognize the required colors. Instead it asked the physician to determine whether Driver met the relevant Vehicle and Traffic Law vision requirements.

Driver’s union, the Transport Workers Union of Greater New York, Local 100 (TWU), filed a grievance on behalf of Driver, arguing that the TA's failure to cooperate with the administration of the road test was in violation of the parties' collective bargaining agreement [CBA]. TA denied the grievance and TWU submitted the grievance to binding and final arbitration. The TA then filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration of the grievance. The Supreme Court denied its petition and TA appealed, contending, among other things, that the grievance was not arbitrable.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that in a public sector context, determining whether a grievance is arbitrable requires a court to first determine:

1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance; and

2. If there is no such prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.”

The court held that, in its view, no statute or public policy absolutely prohibited an arbitrator from deciding whether Driver should undergo a road test before it is determined whether he meets the relevant vision requirements for bus drivers. Further, said the Appellate Division, the parties' agreement to arbitrate this dispute is supported by the terms of the CBA.

In the opinion of the Appellate Division, the relevant arbitration provisions of the CBA were broad and there existed a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Accordingly, any TA alleged ambiguity in the CBA as to whether the physician could recommend that Driver undergo a road test "is . . . a matter of contract interpretation for the arbitrator to resolve.”
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