Tuesday, June 09, 2015

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable
Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, Appellate Division, Third Department

In March 2010 the Green County Civil Service Commission (Commission) adopted a resolution amending its rule governing the probationary term required of new employees to provided that the probationary term shall be a minimum of  8 weeks to a maximum of  52 weeks rather than from a minimum of 8 weeks to a maximum of 26 weeks. The Commission's resolution was approved by the State Civil Service Commission in February 2011.*

In February 2012, Green County (County) and Green County CSEA Unit 7000, Local 820 [CSEA], executed a collective bargaining agreement (CBA) pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law.". The CBA, in pertinent part, provided that "[a]n employee in the competitive, noncompetitive or labor classes shall be on probation for a period of twenty-six (26) weeks from the date of appointment."**

Subsequently CSEA filed a grievance contending that the County had violated the CBA by requiring unit members to serve a probationary period in excess of the 26 weeks on unit members. In response to the Greene County Administrator’s denial of the grievance on the grounds that the Civil Service Probationary Rules for Greene Countycontrolled. CSEA filed a demand for arbitration. The County then filed a petition pursuant to CPLR 7503 seeking to stay arbitration; CSEA cross-moved to compel arbitration.

Supreme Court granted the County's application and denied CSEA's cross application. CSEA appealed the court’s ruling.

Citing Chautauqua County v CSEA Local 1000, 8 NY3d 513, the Appellate Division said that "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act."

The Appellate Division then noted that "[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service that rule has the effect of law … the public employer and the union cannot negotiate a contrary provision in a CBA.”

The court however, concluded that the provision in the COB did not offend the Commission’s rules, explaining that:

1. The CBA executed by the County and the Union long after the Commission modified the probationary term; and

2. The provision in the CBA “is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission.”

As to the first test -- was there a statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said that it discerned “no statutory or public policy bar to arbitration of the grievance in the first instance.”

As to the second test – did the parties actually agreed to arbitrate this particular dispute – the court said that the relevant CBA “contains a broad arbitration clause, which encompasses ‘any claimed violation, misrepresentation or improper application’ of the CBA.” The inclusion of such language, said the Appellate Division, “persuaded [it] that the Union's grievance falls within the scope of disputes that the parties agreed to submit to arbitration.”

The Appellate Division reversed the Supreme Court's order, denying the County's application to stay arbitration and granting the Union's cross application to compel arbitration.

* Civil Service Law §20.2 provides, in pertinent part, that “The rules and any modifications thereof adopted by a county civil service commission or county personnel officer or by a regional civil service commission or regional personnel officer shall be valid and take effect only upon approval of the state civil service commission.”

** This provision in the collective bargaining agreement may prove to be a demonstration of the Doctrine of Unintended Consequences. The CBA language cited in the Appellate Division's opinion provides that a new employee "shall be on probation for a period of twenty-six (26) weeks from the date of appointment." Reading this language narrowly, it could be argued that the minimum period of probation is identical to the maximum period of probation. This would result in the individual having attained "instant tenure" in the position in view of the fact that case law provides that a probationary employee is entitled to "notice and hearing" in the event the appointing authority wishes to terminate the individual during his or her minimum period of probation [see McKee v. Jackson, 152 AD2d 54]. In contrast, a probationary employee may be removed from the position without notice and hearing after completing his or her minimum period of probation and prior to the completion of  his or her maximum period of probation.

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