Wednesday, July 16, 2014

Overtime pay provisions set out in a collective bargaining agreement may not be applicable to police officers engaged in off-duty "outside employment”


Overtime pay provisions set out in a collective bargaining agreement may not be applicable to police officers engaged in off-duty "outside employment”
City of Syracuse v Syracuse Police Benevolent Assn., Inc., 2014 NY Slip Op 05251, Appellate Division, Fourth Department*

The Syracuse Police Benevolent Assn., Inc., [PBA] filed two grievances, both alleging that the City of Syracuse had violated the parties' collective bargaining agreement (CBA) by failing to pay overtime wages to its police officers providing security services during their off-duty hours at the Syracuse International Airport. In response to the PBA’s demand for arbitration the City file a petition pursuant to Article 75 of the CPLR seeking permanent stay of arbitration of both grievances.

The first grievance, Grievance 1, alleged that the CBA required the City to pay overtime for security services provided by police officers during their off-duty hours at the Syracuse International Airport. Although the Airport is owned by the City, it is managed by the Syracuse Regional Airport Authority (Authority). The second, Grievance 2, alleged that the CBA required the City to pay overtime to two such off duty police officers providing security at the Syracuse International Airport who were "dispatched" to a motel adjacent to the airport to "investigate a domestic dispute." 

According to the decision, the off-duty officers who provide security services at the airport are not hired to perform that work by the City nor are they hired by the Authority. They are hired by G4S Solutions, Inc. (G4S), a private security firm retained by the Authority.

Supreme Court granted the City’s petition and stayed the arbitration of both Grievances. The Appellate Division agreed with Supreme Court with respect to Grievance 1 but held that Supreme Court erred in staying the arbitration of Grievance 2.

The Appellate Division commenced its analysis of the Supreme Court’s ruling by indicating the basic procedures followed by the courts in deciding an application to stay or compel arbitration requires the court determining if the subject matter of the grievance arbitrable in contrast to the merit of the grievance. In so doing, the courts apply a two-part test:

1. Is there any statutory, constitutional or public policy bar to arbitrating the issue presented?

2. If it is decided that no such bar exists, the court must next determine if the parties, in fact, agreed to arbitrate the particular dispute by examining the relevant collective bargaining agreement.

Where there is specific provision in the CBA providing for submission of the dispute to arbitration, that provision controls. In contrast, where there is a broad arbitration clause, the court must determine if there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

As to the existence of a "reasonable relationship," if such a relationship is found to exist it is the role of the arbitrator, rather than the court, to "make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

In this instance the court found that the CBA set out a broad arbitration clause and thus it was required to determine if there was a reasonable relationship between the grievance and the alleged violation of the CBA.

In Grievance 1 the PBA alleged that the City violated §8.5 of the CBA which section provided that the City "shall pay for a minimum of four hours' work at overtime rates when an off-duty employee is called in to work ordered overtime for a period of time which is not contiguous to that employee's regular tour of duty."

PBA contended that the off-duty officers working at the airport were entitled to four hours of overtime pay, over and above the hourly rate paid by G4S, each time they perform a "police function," such as "being directed to conduct traffic roadblocks … collect and turn in evidence, investigate suspicious activity and perform other vehicle and traffic duties that only on-duty police officers can perform."

The Appellate Division said that Supreme Court was correct in granting the City’s petition seeking to stay the arbitration “because the grievance is not reasonably related to the subject matter of the parties' CBA.” The grievance, said the court, is based on an alleged violation of §8.5 of the CBA, which relates to compensation for officers who are "called in" to perform "ordered" overtime. Here the off-duty officers working for G4S at the airport are not ordered to work overtime but electe to work for G4S during their off-duty hours.

Further, said the court, the off-duty officers are not "called in" by the City when they make an arrest at the airport or otherwise engage in police functions and PBA conceded that off-duty officers who provide private security services at other venues in the city are not entitled to overtime pay each time they engage in police functions in accordance with the overtime provisions set out in the CBA. The Appellate Division said that it did not perceive any reason to reach a different result with respect to the airport.

The court’s analysis of Grievance 2, also based on an alleged violation of §8.5 of the CBA, resulted in a different conclusion – that the subject of the grievance was reasonably related to the CBA and thus Supreme Court erred in staying the arbitration of Grievance 2.*

In Grievance 2 PBA contended that the two identified officers who, while working at the airport, were "dispatched" to a nearby motel to "investigate a domestic dispute," and those officers thereafter prepared a police report concerning the incident.

Noting that the grievance alleged that “the investigation of domestic violence calls has ‘historically been bargaining unit work’ … [and] that the officers in question were ordered to respond to the [motel] by an on-duty police officer, the Appellate Division concluded that Grievance 2 alleged violations reasonably related to the CBA and that it should be left to the arbitrator to "make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA]" and determine "whether the subject matter of the dispute fits within them."

* See City of Syracuse v Syracuse Police Benevolent Assn., Inc., 2014 NY Slip Op 05252
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