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Tuesday, July 25, 2017

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable


Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable
City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2017 NY Slip Op 05553, Appellate Division, Fourth Department

The City of Watertown [City] filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying the arbitration of a grievance filed by the Watertown Professional Firefighters' Association Local 191 [Local 191].

Local 191 alleged that the City had violated, among other things, provisions in the parties' collective bargaining agreement [CBA] by failing to maintain required staffing levels of captains within the City's Fire Department and by requiring certain members of the Fire Department to perform out-of-title work as a result of Watertown's failure to maintain the required staffing levels.

Supreme Court denied the City's petition with respect to Local 191's grievance alleging a failure to maintain minimum staffing levels but granted the City petition with respect to dismissing that part of Local 191's grievance alleging the assigning its members to perform out-of-title work constituted a violation of the CBA.

Both the City and Local 191, respectively, appealed these ruling by Supreme Court. The Appellate Division unanimously modified the Supreme Court's decision "on the law" by denying the City's petition in its entirety.

The court then addressed arbitrability of each of the issues set out in Local 191's demand for arbitration.*

1. Failure to maintain minimum staffing levels.

The Appellate Division rejected the City's contention that arbitration of minimum staffing levels "is prohibited by law." In City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, the Court of Appeals held that "the subject matter of the dispute controls the analysis" and "a pending administrative proceeding concerning [a] respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the 'particular subject matter of the dispute' is not authorized,' i.e., not "lawfully fit for arbitration."

2. Agreement to arbitrate.

The Appellate Division also rejected the City's argument that the parties did not agree to arbitrate  Local 191's grievance, indicating that a court's review of that question "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom." Here, said the court, the CBA contains a broad arbitration clause. Thus its determination of the arbitrability of the matter is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Finding that such a reasonable relationship existed, the Appellate Division said it was "the role of the arbitrator, and not 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."

3. Staffing levels.

Local 191 contended that the City demoted eight fire captains and thus violated the CBA by failing to maintain the requisite staffing levels, and by concomitantly forcing other members of the Fire Department to perform out-of-title work, i.e., fire captain's work, without the appropriate compensation. As the CBA included provisions governing both minimum staffing levels and compensation for out-of-title work, the Appellate Division concluded that the dispute is reasonably related to the general subject matter of the CBA.

That said, the court reject the City's argument to the contrary, holding that issue presented by Local 191 involves an interpretation of that provision and the merits of Local 191's grievance and thus is a question to be resolved by the arbitrator, "who is tasked with making '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.'"

4. Grievance procedural matters.

The Appellate Division ruled strict compliance with the step-by-step grievance procedure set forth in the CBA, which procedures the City's maintained Local 191 failed to honor, was a question for the arbitrator to resolve.

In the words of the court, "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

5. Out of title work.

The Appellate Division said that with respect to Local 191's cross-appeal with concerning alleged out-of-title work, Supreme Court was incorrect in dismissing it and modified the lower court's order accordingly.

Rejecting the City's contention that arbitration should be stayed with respect to the issue of out-of-title work because compensation for such work falls within the meaning of "salary," which is expressly excluded from the CBA's definition of "grievance," the Appellate Division ruled that as "there is a reasonable relationship between the dispute over out-of-title work and the subject matter of the CBA ... it is for the arbitrator to determine whether the [compensation for out-of-title work] falls within the scope of the arbitration provisions of the [CBA]."

The Appellate Division ruled "that the [Supreme Court's] order so appealed from is unanimously modified on the law by denying the [City's] petition in its entirety, and as modified the order is affirmed without costs."

* The Appellate Division noted the so-called "two-part test" used by New York courts to determine if a grievance is subject to arbitration, stating "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 there is a prohibition, our inquiry ends and an arbitrator cannot act. "If no prohibition exists, ' the courts then ask "whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]."

The decision is posted on the Internet at:


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