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Thursday, January 15, 2015

The two-prong test used by the court to determine "whether a grievance is arbitrable"


The two-prong test used by the court to determine "whether a grievance is arbitrable"
In the Matter of arbitration between County of Herkimer v Civil Serv. Employees Assn., Inc., 2015 NY Slip Op 00125, Appellate Division, Fourth Department

A probation officer employed by Herkimer County, John Hight, applied for a promotion to the position of probation supervisor. The position of probation officer was included in the relevant collective bargaining agreement (CBA) but the position of probation supervisor was not so included. Herkimer promoted another, less senior, employee, although Hight scored higher on the promotional examination than the employee selected for the promotion.

CSEA filed a grievance objecting the promotion of the less senior employee selected. Herkimer denied the grievance on the ground that the position to which Hight sought to be promoted “was not encompassed by the CBA” and CSEA demanded that the matter be submitted to arbitration.

Herkimer then filed a petition pursuant to CPLR Article 75 seeking a court order staying arbitration. Supreme Court granted Herkimer’s petition and denied CSEA’s motion to compel arbitration. CSEA appealed.

The Appellate Division said that resolution of the issue before it was governed by two-prong test set by the Court of Appeals to be used to determine "whether a grievance is arbitrable" in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273.*

The first prong of the test, frequently referred to as "the may-they-arbitrate' prong," concerns whether there is any statutory, constitutional or public policy prohibition against the arbitration of the grievance. If the court determines that arbitration is not so prohibited, it then applies the second prong of the test: does the CBA indicate that the parties have agreed to arbitrate the dispute at issue," -- the so-called “did-they-agree-to-arbitrate' prong."

As Herkimer did not contend that there was any statutory, constitutional or public policy prohibition against the arbitration of the grievance at issue, the Appellate Division said that it was concerned only with the application of the second prong of the Johnstown test.

The Appellate Division held that Supreme Court erred in concluding that the parties did not agree to arbitrate the subject matter giving rise to the grievance, explaining that "Where, as here, there is a broad arbitration clause and a reasonable relationship' between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

Finding that such a reasonable relationship exists between the subject matter of the grievance, i.e., promotion procedures, and the general subject matter of the CBA, the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

Should the arbitrator determine that the parties agreed to arbitrate the subject matter giving rise to the grievance, he or she will then proceed to consider the merits of the contentions of the parties.

* See also and in the Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.


The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_00125.htm


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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