December 12, 2019

Determining if the alleged violation of a provision in a collective bargaining agreement is arbitrable


In New York State the court's apply the tests applied to determine if an alleged violation of a term set out in a collective bargaining agreement [CBA] entered in by a public entity and a recognized or certified employee organization may be submitted to arbitration are as follows:

1. Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance; and

2. If there is no prohibition against arbitrating the issue, the court then considers the parties' CBA and determines if the parties, in fact, agreed to arbitrate the particular dispute.

In examining the CBA courts merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Further, in the event the court rules the matter arbitrable and that the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, it may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

In this action the Employer  and an Employee Organization [EO1] were parties to a CBA that provided that Employer was to pay members of EO1 in the collective bargaining unit a certain percentage more than the rate of pay of certain employees in a different collective bargaining unit.

Subsequently a different union representing the employees in a different collective bargaining unit [EO2] entered into an agreement with  Employer to increase the salaries of its members in that collective bargaining unit, including salary increases for years past, 2016 and 2017. However, the EO2 CBA also provided for a waiver of the receipt of retroactive pay for those years. 

The EO1 filed a grievance on behalf of its members seeking payment for retroactive salary increases for the years 2016 and 2017 for its members in EO1.

Employer denied the grievance, finding that the CBA did not contain a provision requiring it to pay EO1 members a retroactive salary based on the retroactive pay increases Employer had negotiated with EO2 for the employees in the collective bargaining unit EO2 represented. When EO1 demanded Employer's decision be submitted arbitration Employer commenced a CPLR Article 75 seeking to stay the arbitration. EO1 cross-moved to compel arbitration.

When Supreme Court denied Employer's petition and granted EO1's cross motion, Employer appealed the Supreme Court' ruling to the Appellate Division. 

As Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the Appellate Division ruled that only issue before it was whether the parties agreed to arbitrate this particular grievance. 

The Appellate Division concluded that the arbitration provision of the CBA at issue was broad and that there was a reasonable relationship between the subject matter of the dispute, which involves the EO1's claim that its members are entitled to certain payments for retroactive salary increases, and the general subject matter of the CBA.

Noting that some uncertainty existed as to whether the subject matter of the dispute is encompassed within the salary provisions of EO1's CBA or whether the parties contemplated that a separate agreement would be required for wage increases to be paid retroactively, the Appellate Division, citing Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, explained that any alleged ambiguity in the EO1 CBA "regarding the coverage of any applicable provision is ... a matter of contract interpretation for the arbitrator to resolve."

The decision is posted on the Internet at:

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