July 27, 2018

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure


A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure
Onondaga Community Coll. (Professional Adm'rs of Onondaga Community Coll. Fedn. of Teachers & Adm'rs), 2018 NY Slip Op 04878, Appellate Division, Fourth Department

Although Supreme Court granted the Onondaga Community College's [OCC] petition seeking to stay arbitration, the Appellate Division unanimously reversed the lower court's order and granted the Onondaga Community College Federation of Teachers and Administrator's [Federation] cross-motion seeking to compel arbitration.

The Federation had filed a grievance on behalf of one of its members after OCC served the member with a letter notifying her that her position was being retrenched, i.e., eliminated. In its grievance and subsequent demand for arbitration the Federation alleged that OCC had "violated, misinterpreted, and/or inequitably applied the parties' collective bargaining agreement (CBA). Among the Federation's claims was that OCC had violated the CBA provision providing that dismissal of an employee having a continuing appointment "shall be for just cause" and was subject to "the grievance procedure of the CBA" as OCC deprived the member of work and benefits without just cause by constructively discharging her in under the guise of a retrenchment.

Concluding that Supreme Court should have denied OCC's petition staying arbitration, the Appellate Division explained:

1. It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.

2. There is a two-step test to determine "whether a grievance is arbitrable" whereby  [a] the court first determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance and [b] if there is no such prohibition, the is to determine whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

As OCC conceded that arbitration of the grievance is not prohibited pursuant to the first step of the test, the Appellate Division said that "[t]he sole question presented on this appeal is whether the parties have agreed to arbitrate the dispute at issue" consistent with the second step of the test.

A court's review under the second step, said the Appellate Division, "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 the Federation alleged that OCC "violated, misinterpreted, and/or inequitably applied the CBA in dismissing the member without just cause" by constructively dismissing the individual under the guise of a retrenchment.

In the words of the Appellate Division, "[i]nasmuch as [Federation] alleged that the ostensible retrenchment of the member's position was actually a dismissal without just cause, we agree with [Federation] that the court erred in concluding that [Federation had challenged OCC's] decision to retrench."

Although, said the Appellate Division, the CBA specifies several exclusions from the definition of a "grievance" that are therefore not subject to arbitration, including a decision by OCC to retrench a position, all other grievances remain subject to arbitration, in this instance the arbitration clause at issue here is broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties' [CBA]. Accordingly, the Appellate Division ruled the matter arbitrable, and "the arbitrator will then 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 other words, the grievance at issue concerns whether the member was improperly dismissed without just cause under the guise of retrenchment, and there is a reasonable relationship between the subject matter of the grievance and the general subject matter of the CBA. Accordingly, "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]."

The decision is posted on the Internet at:


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