August 29, 2019

The tests applied by courts in New York State to determine if a grievance alleging a violation of a provision in a public sector collective bargaining agreement is arbitrable


In Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Court of Appeals has recognized a two-step process for a court to determine when a particular public sector grievance is subject to arbitration. The court must first determine if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance at issue. If there is no such bar, the court must then examine the collective bargaining agreement to determine if the parties have agreed to arbitrate the dispute at issue.


In this CPLR Article 75 action the petitioner [Employer] sought a permanent stay of arbitration of a labor organization's [Union] demand that an adverse contract grievance decision be submitted to arbitration. Supreme Court rejected the Employer's attempt to stay arbitration of the matter and, on appeal, the Appellate Division sustained the lower court's ruling.

The Appellate Division, noting that the Employer did not claim that was a statutory, constitutional or public policy impediment to submitting the matter to arbitration, said its review of the Employer's appeal was focused on whether the parties had agreed to arbitrate the dispute at issue.

The relevant clause in the controlling collective bargaining agreement [CBA] provided that "i]n the event the grievance is not resolved after the final step in the grievance procedure [set out in the CBA], [either party] may submit [the matter] to arbitration in accordance with the procedure [set out in the CBA] within ten (10) days of the close of the Stage Three review." A grievance was defined as "any claimed violation, misinterpretation, or inequitable application of the terms and conditions" set out in the CBA.

This broad arbitration clauses, opined the Appellate Division, includes matters where a reasonable relationship between the CBA and the matter to be arbitrated exists. As the CBA includes terms and conditions of employment, including a provision that office hours for the grieving employees  involved "shall be from 8:00 a.m. to 5:00 p.m. Monday through Friday," the court found that "a reasonable relationship exists between the subject matter of the grievances and the general subject matter of the CBA, and [thus] the matter is arbitrable."

The court rejected the Employer's argument that "there is no valid agreement to arbitrate because the grievants' claims pertain to a 1995 Memorandum of Agreement (MOA) between the parties and not the CBA."

However, said the court, "the [employees being represented by the Union] have alleged a violation of the CBA and not the separate MOA" and whether there is merit to the Employer's contention that there is no violation of the CBA because the MOA remains enforceable and permits the 11:15 a.m. to 7:15 p.m. shift is an issue for the arbitrator to resolve.*

Addressing the Employer's claim that the demand for arbitration was untimely, the Appellate Division ruled that the Employer had failed to meet its "initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired."

Accordingly, the Appellate Division unanimously affirmed the Supreme Court's ruling without costs.

* In addition, the court pointed out that the CBA does not contain an express provision requiring strict compliance with the contractual grievance procedures as a condition precedent to arbitration but, instead, provides that the arbitrator will consider whether grievance "procedures have not been followed" in determining whether to deny the grievance.

The decision is posted on the Internet at:

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