August 6, 2020

The court, rather than the arbitrator, is to determine if the grievance at issue was timely served and if all procedural steps were timely satisfied


The genesis of this action was a grievance filed by the Union on behalf of a Village firefighter who was denied General Municipal Law §207-a disability benefits after allegedly sustaining an injury while on duty.

When the Union demanded that the matter be submitted to arbitration, the Village commenced a proceeding pursuant to CPLR Article 75 seeking a permanent stay of arbitration of the grievance, contending it was untimely. Supreme Court dismissed Village's petition to stay arbitration and the Village appealed.

The Village further argued that the dispute with respect to the firefighter's entitlement to §207-a benefits was not arbitrable as the CBA does not govern such disputes and thus, the CPLR, and not the CBA, applies in determining the timeliness of the dispute.

The Appellate Division rejected the Village's argument, opining that "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."

In making that threshold determination, the court must conduct a two-part analysis. First, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Appellate Division said that the court must determine whether "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance."

In the event the court determines that no such prohibition exists, as the Court of Appeals held in (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, "the court must then determine whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that with respect to the first test, there was no statutory, constitutional or public policy prohibition against the parties agreeing to a procedure ending in arbitration to resolve grievances concerning an appointing authority's §207-a benefits determination.

Addressing the second test, the Appellate Division concluded that Supreme Court "properly determined that the CBA contains a broad arbitration clause and that there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

However, the Appellate Division said it agreed the Village's argument that the CBA contains conditions precedent to arbitration in the CBA's grievance procedure and that Supreme Court should have decided whether such conditions precedent had been met.

Noting that "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," except in cases involving "a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

In this instance, said the court, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration.

Under the circumstances, the Appellate Division concluded that it was for the court, and not the arbitrator, to decide [1] whether the grievance had been timely served and[2] whether "steps one and two of the grievance procedure" set out in the CBA had been satisfied.

Accordingly, the Appellate Division reversed the order and judgment of Supreme Court, reinstated the petition, and remitted the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination with respect to the Village's petition to stay arbitration.

The decision is posted on the Internet at:





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