April 16, 2020

A statutory, constitutional or public policy prohibition bars the arbitration of a provision set out in a collective bargaining agreement


As the Court of Appeals held in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273,  a court undertakes a two-prong analysis in determining whether a grievance between a public employer and an employer organization representing employee in a collective bargaining unit is arbitrable.

The first prong is the "may-they-arbitrate" prong where the court must determine if "there is any statutory, constitutional or public policy prohibition against arbitration."

If the disputed issue survives this first test, the court must then consider the second prong of the test and determine if the parties did, in fact, "agree-to-arbitrate" the particular disputed issue.

In this action the employer contended that arbitration of the dispute was prohibited "as the underlying [issue] was a job security provision* such that arbitration would violate public policy."

Noting that there are some exceptions to the "violation of public policy" prohibition, the Appellate Division, citing Burke v Bowen, 40 NY2d 264, opined that a job security provision "does not violate public policy and therefore is valid and enforceable, but only if the provision is 'explicit,' the CBA [collective bargaining agreement] extends for a 'reasonable period of time,' and the 'CBA was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power.'" The court further explained that the "requirement that 'job security' clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions ..., the parties must explicitly agree that the municipality is doing so."

Deciding that the plain language of the disputed language in the CBA "merely provides for minimum staffing on particular shifts," the Appellate Division said it agreed with Supreme Court that this provision was not a job security provision and "the stringent test in Johnson City Professional Firefighters Local 921 (Village of Johnson City), 18 NY3d at 32, does not apply" in this instance.

The Appellate Division found that the disputed provision, although it does not expressly mention safety, "is nonetheless more akin to a condition of employment, such as the safety of officers, than to a job security provision."

Finding no statutory, constitutional or public policy prohibition against arbitration, the Appellate Division said that as "the parties have used language that clearly manifests an intent to exclude" this subject from arbitration, this grievance falls "within the scope of [the CBA's] broad arbitration clause" and Supreme Court properly denied Employer's petition seeking a stay of arbitration."

* A job security provision insures that, at least for the duration of the agreement, the employee "need not fear being put out of a job"

The decision is posted on the Internet at:

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